American Thought Leaders - Ilya Shapiro Explains Limits of the First Amendment Following Campus Firestorms

Episode Date: January 8, 2024

Sponsor special: Up to $2,500 of FREE silver AND a FREE safe on qualifying orders - Call 855-862-3377 or text “AMERICAN” to 6-5-5-3-2“My whole career was in the balance over this badly-phrased tweet, the substance of which something like 76 percent of Americans agree with.”In early 2022, Ilya Shapiro was about to start a new job as the executive director of the Center for the Constitution at Georgetown University, when he was suspended for a “racist tweet.”“This is not the Berkeley hippies. In fact, the Berkeley hippies—now boomer professors—are afraid of this illiberal radical left that seems to want to cancel, if not kill them, for having divergent views,” says Mr. Shapiro.We discuss the limits of free speech, when it veers into misconduct or harassment, and how to balance the 1st amendment with Title VI and other civil rights laws—especially on college campuses.“A lot of what’s been going on in the last couple of months is not even speech to begin with. You do not escape criminal liability for, say, public urination on a building, just because you’re saying, ‘I’m being expressive in showing my displeasure for the organization that inhabits that building,’ or tearing down posters off private property because ‘I’m expressing my disdain for what those posters are saying.’ No,” says Mr. Shapiro.He argues that it is not the laws—not criminal, civil, federal, or state—nor is it the university policies at most places that are to blame for what we’re seeing today. Rather, it is their uneven enforcement.“MIT famously, even after admitting that some students violated their rules on blocking access to buildings, then said, ‘Oh, we’re not going to punish those students, because a lot of them are foreign and they’re here on student visas.’ And it turns out, if you punish them for these kinds of violations, they lose their visas and they have to leave the country. And so, in effect, MIT has created a system where foreign students can harass and intimidate, but American students can’t,” says Mr. Shapiro.Views expressed in this video are opinions of the host and the guest, and do not necessarily reflect the views of The Epoch Times.

My whole career was in the balance over this badly phrased tweet, the substance of which something like 76% of Americans agreed with. In early 2022, Ilya Shapiro was about to start a new job as the executive director of the Center for the Constitution at Georgetown University, when he was suspended for a quote, racist tweet. This is not the Berkeley hippies. In fact, the Berkeley hippies now, you know,

boomer professors are afraid of this illiberal, radical left that seems to want to cancel, if not kill them for having divergent views. We discuss the limits of free speech, when it veers into conduct or harassment, and how to balance the First Amendment with Title VI and other civil rights laws, especially on college campuses. A lot of what's been going on the last couple of months is not even speech to begin with.

You do not escape criminal liability for, say, public urination on a building just because you're saying, I'm being expressive in showing my displeasure for the organization that inhabits that building, or tearing down posters off private property because I'm expressing my disdain for what those posters are saying. No. This is American Thought Leaders, and I'm Janja Kellek. Before we start, I'd like to take a moment to thank the sponsor of our podcast, American Hartford Gold. As you all know, inflation is getting worse. The Fed raised rates for the

fifth time this year, and Fed Chairman Jerome Powell is telling Americans to brace themselves for potentially more pain ahead. But there is one way to hedge against inflation. American Hartford Gold makes it simple and easy to diversify your savings and retirement accounts with physical gold and silver. With one short phone call, they can have physical gold and silver delivered right to your door or inside your IRA or 401k. American Hartford Gold is one of the highest rated firms in the country with an A-plus rating with a Better Business Bureau and thousands of satisfied clients. If you call them right now, they'll give you up to $2,500 of free silver and a free safe on qualifying orders. Call 855-862-3377. That's 855-862-3377. Or text American to 65532. Again, that's 855-862-3377. Or textAN to 65532.

Olivia Shapiro, such a pleasure to have you on American Thought Leaders. Good to be with you. Looking forward to the conversation. So not too long ago in 2022, you were pretty well known and pretty well regarded, specializing in constitutional law. And then you tweeted something that wasn't very popular. So just tell me about what happened. When I was at the very end of my tenure at the Cato Institute, a libertarian think tank here in Washington, I decided I had this opportunity to have an impact in a different way, as a constitutional scholar, as a public commentator, as a teacher to move to Georgetown

and be the executive director of their Center for the Constitution. Now, a few days before I was due to start that job, early in 2022, was when news of Justice Breyer's retirement broke. And I was doing a lot of media about that. I had written a book on the politics of judicial nominations and Supreme Court confirmation battles. So very timely. Whenever something like this happens,

I'm in demand in the media. And after a day of doing all this and getting more and more upset at President Biden for sticking with his pledge during the campaign that he would nominate a black woman, that is, he would restrict his pool of candidates by race and sex. Late at night in my hotel room, I was in Austin, Texas, not a best practice to be doom-scrolling Twitter and firing something off late at night. I said, you know, if I were a Democratic president, I think I would pick the chief judge of the D.C. Circuit, the second most prestigious court in the country. A man by the name of Sri Srinivasan happens to be Indian American and an immigrant, has a lot of diversity points as well. But I said, due to the latest hierarchy of intersectionality, he wasn't being considered, and we would end up

with a, quote, lesser black woman. Meaning that it was an infallibly phrase, but I simply meant that if I considered Judge Trina Boston to be the best, then everyone else in the universe was less qualified, including the eventual black woman that President Biden would choose. The next morning, I went to bed after this, then all heck had broken loose on Twitter overnight. And the next morning there was a firestorm. I might have been fired. I mean, it was very close whether Georgetown would rescind my offer even right then. But ultimately what happened after these, what I characterize as four days of hell, it was very unnerving. My whole career was in the balance over this badly phrased tweet, with the substance of

which something like 76 percent of Americans agreed with that the president should consider all possible candidates. But anyway, after these four days of hell, the dean, Bill Treanor at Georgetown, decided that I would be onboarded, but I'd be immediately suspended with pay pending investigation into whether I had violated the university's harassment and anti-discrimination policies. And that so-called investigation, it became clear rather quickly that this was a sham. It lasted four months to investigate a tweet, even though the university had clear protections on paper for the freedom of speech. Well, so let me quote something. I just happened to have something here that Bill

Treanor said. He says, you know, the university does have a free speech and expression policy that binds us, but, quote, since we're a private institution, the First Amendment doesn't apply to us. And it's not the First Amendment that's the university's guideline. What do you think? That's correct. Private universities are not bound by the protections of the First Amendment. Now, a lot of them, including the ones that have been in the news lately with the disastrous testimony by the presidents of Penn, Harvard, and MIT, now the former president of Penn, she's already resigned. These so-called elite schools do have broadly protective free speech policies that are essentially the same as the First Amendment. And Georgetown's, with which I'm very familiar, of course, says that the mere fact that someone is uncomfortable

or objects to something that someone says does not make it unprotected. There is a harassment policy, but the law and school or employer policies define harassment as targeting someone, making it hard for them to work or what have you. Well, I'm sure we'll get into this over the discussion of anti-Semitism on campus. But Georgetown ended up at the end of these four months, this sham investigation, they cleared me, Dean Treanor cleared me on the technicality that I wasn't yet an employee when I tweeted. But it took some high-powered lawyers, same firm that briefed or prepared the university presidents for their testimony, by the way, WilmerHale, very expensive, very prestigious D.C. firm, was Georgetown's advisor in my investigation.

And it took some junior associate four months to look at a calendar see I was an employee but anyway I ultimately got this report from the diversity office the office of institutional diversity equity and affirmative action that was investigating me which made clear that had I been an employee that I would been subject to discipline because I was creating an a hostile educational environment. And indeed, the standard that they were applying was that if someone, not just me, but this was clearly a shot across the bow to other faculty and staff,

that if you say something that someone even claims offense to, then that puts you back in the Kafkaesque inquisition, if you will. And so I decided I could not work like that. I couldn't do the job I was hired to do, which was partly public facing, partly teaching students about controversial

Supreme Court cases. I'd have a sword of Damocles over me. And so I came to this realization, and I knew I had to quit. So as one does, I wrote up a resignation letter that was published in the Wall Street Journal, and away we went. The next day I announced my move to the Manhattan Institute, where I am to this day. I announced that on Tucker Carlson's show on Fox News.

So four days of hell, four months of purgatory, if you will, and then I was finally in control of the media narrative, exposing the rot in academia, which we've seen a lot more of these last couple of months. Just, I mean, you've started to talk about this, but why do you characterize the investigation as a sham? This is a law school, one of the supposedly elite, most prestigious law schools in the country. You know, when you investigate a legal claim, a charge, you know, have I violated the harassment or discrimination policies, it doesn't take a long time to apply the law,

these policies, which are rather short, to the facts, even shorter, a couple of tweets, and come up with a conclusion. And here the conclusion seemed rather obvious that I had spoken something that some people didn't like. I wasn't targeting anyone. I wasn't taking a decision based on race or sex. In fact, I was criticizing President Biden's decision based on race or sex. And so it shouldn't have taken long, regardless, for, you know, assign it to the most junior faculty member or something to come up with a conclusion. But clearly, they didn't want to make a decision until the students were off campus. And indeed, the dean, I had a couple of interactions with

him over Zoom because this was still COVID days and we couldn't meet in person without wearing masks and all that nonsense. So he was like a deer in headlights and just did not want to take a decision one way or another. Didn't like that I had put him in this position where he had to demonstrate leadership, and I think ultimately failed. You know, these college leaders, most of them, are not woke radicals. They're not social justice warriors. They're not anti-free speech per se. What they are is spineless cowards. They're careerist bureaucrats who have learned how to climb the greasy pole following the

incentives that they have to rise within academic bureaucracy, part of which is to mollify and placate the activists who are very loud on the left and the bureaucracies that have sprung up that are often the tail that wags the dog. We no longer so much have faculty governance as governance by these bureaucratic structures, and especially the last five, ten years by the DEI structures, the diversity, equity, inclusion, which inculcate an illiberal ideology which is at cross purposes with the classical liberal mission of institutions of higher education of seeking open inquiry, looking for the truth, building human knowledge that is aided by such values as free speech, academic freedom, due process, treating everyone equally.

These things are seen as anathema to these kind of postmodern theories that these bureaucracies are there to instill. So I want to touch on, you talked about these three Ivy League presidents that created their own firestorm recently. You don't hold it in very high esteem, but I want to look at that from the lens of a constitutional scholar, of a free speech expert. So why is what they said problematic? The first point is that they approached this like a deposition, as if they were involved in a lawsuit and their lawyers were telling them, you know, talk a lot without saying much, don't admit liability. It was a very dry, bloodless presentation. Is it okay to call for genocide?

Well, it depends. Well, I mean, if you were giving a sophisticated, nuanced legal answer, as I'm about to, to you, it depends on the context. There's something to that. But this was a public hearing for public consumption. It was a moral exercise. It was a political exercise to not begin the answer to that question with, well, of course we condemn any institution of higher education condemns a call for genocide against any group that is antithetical to our mission. Now speech is protected and there is no calling for genocide exception to the First Amendment and to our broad free speech policies that track First Amendment protections.

The problem was they couldn't say that because they had not enforced the freedom of speech at their schools. Countless professors have been investigated and disciplined. Students have been expelled for much lesser offenses than calling for genocide, using the wrong pronoun, triggering someone in some way, saying something that's politically incorrect, as we used to say. And surveys of whether elite schools or more broadly across the country shows that students and faculty are chilled. They feel like they're walking on eggshells. They can't express themselves.

They can't even discuss certain subjects, regardless of what viewpoint they might have, because they're going to be canceled in some way by their institution, by this investigation, by whether it's HR or the diversity office that says that certain values are more important than free speech or what have you. So anyway, going back to the president's presentation, after saying we have broad speech protections, but as we've seen the last couple of months, sometimes these rallies or demonstrations or anti-Israel chants become harassment or vandalism or assault. At MIT, does calling for the genocide of Jews violate MIT's code of conduct or rules regarding bullying and harassment, yes or no? If targeted at individuals, not making public statements.

Yes or no? Calling for the genocide of Jews does not constitute bullying and harassment? I have not heard calling for the genocide for Jews on our campus. But you've heard chants for intifada? I've heard chants which can be anti-Semitic depending on the context when calling for the elimination of the Jewish people. So those would not be according to the MIT's code of conduct or rules? That would be investigated as harassment if pervasive and severe. Ms. McGill, at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct? Yes or no?

If the speech turns into conduct, it can be harassment. Yes. I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment? If it is directed and severe or pervasive, it is harassment. So the answer is yes. It is a context-dependent decision, Congresswoman. It's a context-dependent decision, Congresswoman. It's a context-dependent decision. That's your testimony today.

Calling for the genocide of Jews is depending upon the context. That is not bullying or harassment. This is the easiest question to answer yes, Ms. McGill. So is your testimony that you will not answer yes? If it is, if the speech becomes conduct, it can be harassment. Yes. Conduct meaning committing the act of genocide? The speech is not harassment? This is unacceptable, Ms. McGill. I'm going to give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn's code of

conduct when it comes to bullying and harassment? Yes or no? It can be harassment. The answer is yes. And Dr. Gay, at Harvard, does calling for the genocide of Jews violate Harvard's rules of bullying and harassment, yes or no? It can be, depending on the context. What's the context? Targeted as an individual. Targeted at an individual. It's targeted at Jewish students, Jewish individuals. Do you understand your testimony is dehumanizing them?

Do you understand that dehumanization is part of antisemitism? I will ask you one more time. Does calling for the genocide of Jews violate Harvard's rules of bullying and harassment? Yes or no? Antisemitic rhetoric when it crosses into conduct, that amounts to bullying, harassment, intimidation, that is actionable conduct, and we do take action. So the answer is yes, that calling for the genocide of Jews violates Harvard Code of Conduct, correct?

Again, it depends on the context. it does not depend on the context the answer is yes and this is why you should resign these are unacceptable answers across the board these things are not protected they violate our code of conduct and we were going to investigate and punish those kinds of instances that's true a lot of what's been going on the last couple of months is not even speech to begin with. You do not escape criminal liability for, say, public urination on a building just because you're saying, I'm being expressive in showing my displeasure for the organization that inhabits that building, or tearing down posters off private property

because I'm expressing my disdain for what those posters are saying. No, whatever your purpose is, you're engaged in conduct that can be punished. And then the second category is exceptions to First Amendment protection. So if I make a direct, what courts call a true threat against someone, if they are objectively in fear of physical harm, you can be arrested and prosecuted for that. There was a student at Cornell about a month ago that posted a bunch of vile things, not just saying vile things, not just from the river to the sea or intifada or, you know, hurt all the Jews, not even something general like that, but specifically

talking about people making threats and he was properly arrested. Or incitement of violence. That's a high bar. There was some discussion of this over whether President Trump incited violence on January 6th. And so there's been, you know, some familiarity with the very high standard that the Supreme Court has put in place, namely that there has to be a call for imminent and direct violence that's closely tied to the speech. So just generally saying, and this is why we should have genocide of the Jews, that is not enough to be incitement of violence. It might be harassment if it's outside of the Jewish life center, the Hillel or what have you,

or outside a dorm where Israeli students are or something like that. Stalking, intimidation, all of these might violate either school rules or the criminal law. But just saying something like that in a public square at a rally, that's not enough to be incitement. Now, if the speaker says, kill all the Jews and therefore today, starting right now, any Jew you see on campus, punch them in the face, that could be incitement of violence. So those are some exceptions that, again, it takes a while to explain all this. So if the presidents really wanted to be technocratic and legalistic, they would have had to say all of that.

But they try to fudge it and say, well, it depends, which is, again, not a good PR maneuver for a congressional hearing. But anyway, this third bucket that's very important for your viewers to understand is time, place, and manner regulations. That is, even for protected speech, even if you forget conduct, forget a true threat or incitement, something that's clearly protected, a political opinion,. You can't say that whenever, wherever, however you want. I can't go to your neighborhood in the middle of the night with a megaphone, start yelling about what I think about Donald Trump or Joe Biden. There's speech ordinances and so forth. That's right. That's right. On university campuses, there are rules about not disrupting classes,

or if a student organization has reserved a room to have a speaker, you can't shout down that speaker. Or if they've reserved a space to have a rally, you can't have your counter rally and try to disrupt them. Again, time, place, and manner regulations. These are perfectly appropriate, just like people being now arrested for blocking streets and interstates. Just because they have an expressive purpose, you can apply this time, place, and manner regulation that says you can't impede the right-of-way and things like that. So those are the general things to think about as we've been observing what's been going

on on campuses. Well, you know, as you're describing all this, I can't help think back to, as I have on a number of episodes of American Thought Leaders, to Herbert Marcuse and his vision of repressive tolerance. Essentially, the idea that for some people, everything should be tolerated, and for the others, the bad people, the conservatives and people like that, nothing should be tolerated. In fact, we can actually do all sorts of bad things to them because they're bad. I mean, that's a very glib way of describing it. Situational ethics or ends justify the means, that's right. And that's a huge reason why DEI is so problematic. Because what DEI is is not civil rights law.

Traditional civil rights law that you can't discriminate based on race and sex and other protected categories. That was there when I was in college and law school 20, 25 years ago. There's nothing wrong with that. You can apply that. We don't need whole new bureaucracies to impose it. And in fact, all of these calls to abolish DEI, which I've been a part of, my colleague at the Manhattan Institute, Chris Rufo, and I, in January, proposed model legislation that's been taken up by a number of states. Most recently, as we record this just a few days ago, the governor of Oklahoma signed an executive order defunding DEI bureaucracies at Oklahoma public universities. That's all to the good, but that doesn't touch the lawyers who are enforcing federal and state civil rights laws. So this is not about that. This is about an ideological structure that views everything, that teaches that everything has to be viewed through the lens of identity,

whether that's race or sexual orientation or gender or what have you. And everybody needs to be evaluated based on your level of privilege, whether you're part of the oppressor or the oppressed class, where you are in the overall intersectional hierarchy. And so some speech is more valuable than others. Some speakers can be shouted down because they come from a position of privilege and they're the oppressor class. Some cannot be. So this all comes from critical theory from the 30s and 40s in Austria and Germany, ironically fleeing the Nazis to impose a different kind of illiberal ideology. It started in sociology departments, philosophy departments.

In the 70s and 80s there was a bit of a flare-up of various critical theories, the crits in English and even even law schools. By the time I was in law school 20 years ago, it sort of had flamed out. But now it's back with a vengeance. So perhaps this is why you've been described as an embodiment of white supremacy. Yeah. I mean, everyone who is for classical liberal values is for white supremacy under this rubric. There are some words or a glossary of terms that came out of Stanford maybe six months ago,

eight months ago. Those are in addition of white supremacy because they support current structures, whereas these critical postmodern theories say that all current structures are illegitimate. They need to be burnt down and reestablished based on these oppression Olympics and intersectional hierarchies. So you mentioned that you decided to quit. Do you feel like you were canceled? I feel like I canceled them. So they tried to cancel me. And what, maybe, what is, what is being canceled? Yeah, yeah, you know, a good approximation, I think Nicholas Christakis, who's a Yale professor, who was quote-unquote canceled from being the master, now called the, I guess, the head of one of the residential colleges. Master is another word

that's not allowed because it harkens to slavery and so forth. There are some places where doing work in the field, you do field research, the word field is not allowed because that harkens to slavery. I mean, not only slaves work in the field. Anyway, there's some bizarre denial of basic objective truths and the meaning of words and so forth. But anyway, Nick Christakis, who famously was yelled at and pushed away from heading up this college, his definition is very pithy of cancel culture, saying, punishment, disproportionate punishment for something you said that is clearly within the Overton window, the mainstream, socially acceptable range of views. So, you know, people celebrating Hamas, celebrating the

atrocities and barbarities and baby killing and gang rape and all the rest of it that Hamas perpetrated on October 7th and then being their jobs being rescinded maybe that's meritorious because it would be hard for people like that to you know there to function normally in a big business or in a law firm you wouldn't want to entrust the mum for example the development of our young people to folks that we're doing at least that's my that's my own sure sure I mean you can characterize it in different ways. Or, for example, at Stanford earlier this year, when students shouted at a federal judge, we hope your

daughters get raped. Now, I don't think it's improper cancel culture for a law firm to then rescind that or not hire a student who was involved in that way. But anyway, that's kind of a rough approximation of cancel culture. I was expressing a view against racial and gender preferences for the selection of high public officials. Again, a view that's supported by a vast majority of American people. According to that rabid right-wing outlet ABC News, it was 76%. It's not just the Ted Cruz's of the world that were supporting my position. Most Americans thought that. I could have expressed it better. It was a failure of

communication. Again, when you're tweeting, you don't necessarily think about that as much as you do when you're writing an op-ed or even speaking in a conversation like this one, even though it's spontaneous and not scripted. And so I was investigated. I was, you know, the process is the punishment in many of these circumstances. The first few days, like I said, were the worst because, you know, did I throw away my entire career? I was changing jobs. It was a vulnerable position.

I have four little kids. I mean, it was tough. But then it quickly became farcical. And, you know, I again was speaking about the Supreme Court. My counsel said, don't criticize Georgetown because that's ongoing. But otherwise, you're free to, you know, do your normal job. So I did. You know, I was reinstated. So I wasn't canceled in that respect, but I canceled Georgetown. I say I could not work under the conditions that you have now created. You've changed the terms of the job. I'm not going to work like that. And I've been using this platform that I've been given. You know, I wasn't expecting to be, you know, I've always been for free speech in the First Amendment. I've been a constitutional scholar. I filed briefs to

the Supreme Court on these sorts of issues. But I did not have nearly as much of a focus on either free speech or higher education policy as I do now. So I've pivoted and I've used the platform I was given, the unexpected opportunity to take my career in a different direction. It doesn't justify what happened, but you try to make lemonade out of lemons. The Penn president was, I suppose, pressured to resign after her performance at that hearing. So in the end, how does that fit with this cancellation concept that we're talking about?

Well, if you fail at your job, there can be consequences for that. It's not that you can fail at your job by poor public speaking. In a sense, there are consequences or punishment for speaking poorly. But it's not the same thing as having an offer of admission to Harvard rescinded because somebody unearths some Instagram post of yours from when you were 12 years old.

As has happened, people have gone down for far lesser crimes than Harvard's president's performance, let alone her plagiarism and all that. But Liz McGill, the erstwhile Penn president, like all of them, put on a poor performance. Not a good leader. Did not have their institutions come out looking well. If anything, further lowered public confidence in what are supposed to be three of the leading higher education institutions in the country and of course the role of the of the university president a lot of it is PR a lot of it is preserving the brand enhancing the brand attracting donors attracting prestige and as we're discussing here you know having moral clarity right like you would think

you're been trusting again your young people to someone. One would hope that they, you know, don't have this weird equivalency around issues as extreme as genocide. And also the rank hypocrisy. Imagine any other minority group rather than Jews. Imagine a hypothetical if Elise Stefanik had asked about, let's say people are chanting, lynch all the blacks or something like that, or kill all the Arabs. That would not have been allowed. The answer would have been much different.

And so hypocrisy is not necessarily a crime, but it certainly makes you look bad, and it's a failure of leadership in that sense. And by the way, it could make these schools, it still might, because there are pending lawsuits including against these institutions for failing to preserve a safe and equal access to educational opportunities and an educational environment under Title VI of the Education Act. That is all recipients of federal funds,

not just state schools, but all of these schools receive research grants, student loans, et cetera. And they're liable for various things, non-discrimination policies is one, but also creating a healthy environment. And if it can be shown, as I think it can from the perspective of speech policies, that other minority groups are treated differently than Jews, then that shows that Jews are disfavored. And so there's a lot going on there. But Liz McGill, the reason why she is now gone and the other two, for now at least,

are hanging on is because she had undergone criticism of her response to October 7th in the first place. There was an anti-Semitic literary festival that she botched the PR of various things. This was just the latest. And so she was pushed out after some donors closed their wallets. We'll see. It's still a moving target with the others. MIT famously, even after admitting that some students violated their rules on blocking access to buildings, but then said, oh, we're not going to punish those students because a lot of them are foreign and they're here on student visas. And it turns out if you punish them for these kinds of violations,

then they lose their visas and they have to leave the country. And so, in effect, MIT has created a system where foreign students can harass and intimidate, but American students can't. Lots of weird things, again, going on from the uneven enforcement of what otherwise are pretty good rules and policies at all of these places. Jan, I want to tell you, neither the laws, the criminal laws or the civil laws, federal, state, nor university policies at most places are to blame for what we're seeing. It's their uneven enforcement or non-enforcement. Well, so that's fascinating. Let's go back to free speech for a moment,

because we've kind of explored a bit what's protected, what's not, what are some, let's say, exemptions, how policy applies. Where does this sort of intersection of speech and conduct happen? Because harassment, this is an area where it might not be obvious, for example, right? And then I wanted just to look at areas where you mentioned one just now where conduct, people will say, I'm protected through free speech, but actually what's happening is conduct, right? So let's start with harassment. When does something become conduct and not speech? There has to be targeting of someone or someone's particular individuals and there has to be something that's severe and pervasive.

So you know one cat call down the street probably is not gonna be sufficient but if people are following around a student or a group of students and yelling things at them and kind of disturbing their ability to go about their lives or their educations that's harassment. Or, as happened, I think, on Harvard Yard, a bunch of students crowded around one Israeli student, or at least a student with an Israeli flag, and were menacing. There's a state crime, as well as a tort, called menacing,

where you're sort of intimidating someone with your physical presence you know looking like you're about to strike them for that matter to commit the tort of assault you don't have to physically touch someone it's a reasonable apprehension of you know imminent threat of some sort so it doesn't matter what your motive is whether you have an expressive motive or not whether you have an expressive motive or not, whether it's based on hate, whether it's based on anything else, but there are rules against, again, vandalism, assault, harassment, intimidation, menacing, all of these different physical actions that are as much crimes or torts, meaning civil wrongs, that you can be sued for,

regardless of any expressive content to them. Some common slogans which I've come across, globalize the Intifada, some officials have said, well, that's not a call to violence necessarily. The Intifada are several campaigns that were initiated by Yasser Arafat, the leader of the Palestinian Liberation Organization, that involved suicide bombers on buses and cafes and pizzerias and daycares and things like that. It was extremely violent.

Specifically, Intifada in the Palestinian context is armed violent resistance. So someone might be ignorant and not know that, but the objective understanding is violence, calling for violence. So there's one statement, globalize the interpon. Another one is from the river to the sea, Palestine shall be free. Of course, implication being wipe out the state of Israel. Yeah, let's be clear on that because in surveys, a lot of students who are chanting this apparently don't know this, don't know even what river, what sea. So it's from the Jordan River, which is the boundary between Israel and Jordan, the country of Jordan, to the Mediterranean Sea. If you wipe that out, from the river to the sea, that's going to be all Palestine, which means you get rid of Israel,

get rid of the Jews. It's an eliminationist slogan. And again, many students might not know this, but the objective truth of what that means and it comes from the the arabic translation of what that in arabic what they chant is from the river to the sea palestine will be arab and they translate that for for rhyming purposes in english to say you know from the rivers to see palestine will be free but the the the objective meaning uh is to get rid of israel to get rid of the Jews. But both of those are protected speech. They are protected. Yeah. Unless in certain contexts, and here Liz McGill was correct, in a certain context

that loses its protection if you're having those chants in front of a Hanukkah service. If you're having those chants outside a synagogue or a Hillel or something like that, because that is obviously targeting threats of violence. It doesn't rise to the level of incitement of violence, again, unless the chance are also, and you know, when those people get out of that synagogue, make sure to hit them or something like that. But it can be harassment or intimidation. Someone might have in mind lots of different things.

At Yale, they famously redefine words so that they mean the opposite of what they actually mean, but you can't play these semantic games in the law. Sometimes it might be a jury question, I suppose, but courts can take notice of the objective meaning of certain words. And the Supreme Court decides the meaning of, I don't know, interstate commerce under the Constitution for definitions of the scope of federal power. And so I suppose you could have a mini-trial in a district court over what the true meaning of all this stuff is. But, you know, I've done some research into this. When you look into what it means, regardless of what any one person might mean it subjectively, the general public meaning of these terms are violent eliminationist. So I was just at an event where a young woman, Hong Konger, is in D.C. Yesterday, the Hong Kong government has announced a $1 million Hong Kong dollar bounty on her

head. It's for speech and organizing and things like that. But one thing that she said was that there was a student on her campus that actually issued a death threat towards her. And from what she could tell, there really were no repercussions. The student graduated. And so in a situation like that, right, presumably there's school policy that applies here, but it's also, I don't think, I don't think death threats are protected. That's right. Yeah, that's right. If it's a true credible threat. As in like they said it, is that enough for it to be a true

credible threat? If, I mean, I don't know the facts of this specific case. Yeah, yeah, yeah. But it's a certain legal bar that you have to say that this happens with people who threaten the lives of public officials from time to time. And they get visited by the FBI and often arrested. And like I said, this Cornell student about a month ago who was issuing threats and got arrested because they were seen as credible and understanding what the words meant, and yet you wrote them. And this has gone to the Supreme Court. Do you actually have to have in your mind the idea that you're going to kill someone? Well, if that person objectively and reasonably fears that based on what you said,

that you're a threat to them, then that's a true threat. Well, okay. So in other words, I say to someone, I'm going to kill you, right? Now, of course, in this case, there's a sort of the weight of a regime known to be committing genocide kind of behind it. So I think that adds a bit of weight, I suppose, or does it? I think it does. I mean, again, it depends on the context. It's like, well, let's say the student had posted, well, I was waver, it depends on the context. It's like, well, let's say the student had posted, well, I was wavering about this, but now that there's a, you know, a reward for going after this other person, I'm definitely going to go get her. But it's a matter of criminal law. It's not just school policy. Making death threats, credible death threats, is illegal. It's

a crime. Another example of what incitement of violence might be or an exception to the protections, if you recall back in October, there was a rally or a parade, a protest in Los Angeles. And they were chanting, you know, from the river to the sea, all these slogans. And a gentleman with an Israeli flag was killed. He was struck. It turns out it was, I think, a community college professor who struck him with a megaphone and that man fell and further hit his head and ended up dying. There's no video I think of the chance but it could well be that some of that speech was inciting that kind of violence. But it has only become that way once

we know what was done with it? I mean this is like how can someone possibly know that what will happen after they say because the protections are pretty strong. You have to be saying go after that person right now basically if I understand it correctly. Well again we don't know specifically what was chanted. If you's a witness who says, well, I heard the folks that are around this guy who ultimately used the megaphone to hit this other man, the folks around there were saying, let's go after anybody with an Israeli flag, or, oh, look, that guy has an Israeli flag. That might be enough at that point. Okay, very interesting. So then there would be other basically complicit people

other than the actual person. Potentially, right. I wanted to talk a little bit about this group that's gotten a bit of press, the Students for Justice in Palestine. They put out this resistance toolkit. Are you familiar with that? So this goes to some slightly different issues.

We were dealing with individuals, what speech is protected, what's conduct, what can be regulated. Then we talked a little bit about the duties of schools and their policies, Title VI and what they have to enforce and things like this. This raises another issue. What about organizations, not individuals, but the rights of organizations to exist and to engage in expressive activity. A number of schools, Columbia, Brandeis, I think at least one or two others, have disestablished or deregistered their local chapters of the Students for Justice in Palestine, saying that this group foments activity that is against our policies. Florida went further.

For their public institutions, the chairman of their board of governors announced the disestablishment, and Governor DeSantis, I think, made the announcement, the disestablishment, the defunding of SJP chapters at all public institutions in Florida. That was paused temporarily based on concerns of how the order was organized, whether there would be liability for individual faculty members or staff or what have you. And there's some fact finding now going on about certain things. But the key thing with that group, with respect to public institutions at least, is that there are both federal and state laws against material support for terrorism. What does that mean?

The Supreme Court has interpreted it to mean something more than engaging in violence. So it can be even advice. It can be public relations. The key is that there has to be some sort of coordination or cooperation. So there has to be a close enough tie between the National Students for Justice in Palestine organization with Hamas or some other recognized terrorist organization and then their coordinating also with the local chapters. That would be reason enough to disestablish them, the chapters. Now, this doesn't mean that the students who are members of SJP would then be arrested or punished

or expelled or something like that. That's a different question. That, again, goes to what each individual student might be doing. But in terms of disestablishing or defunding, at least with public funds, organizations like that, the material support for terrorism aspect has been playing a large role. And what about this resistance toolkit? Are you familiar with this? what things to chant and it even had branding materials like the hand glider logos that started appearing in all these rallies hearkening to the Hamas fighters who paraglided in over the fences to murder the kids who were partying in that rave in the South Desert. So there is coordination. I think it's quite clear that there's coordination between the national organization and these local chapters. The question is, you know, what is their tie

exactly to Hamas or Islamic Jihad or some other recognized terrorist organization? And you're saying as long as the tie isn't clear and it's, you know, just discretionary somehow? isn't clear and it's just discretionary somehow. Well, the Attorney General of Virginia is investigating the ties between various charities that allegedly have connections to Hamas or related organizations. The general counsel of any university or of the public university system of a state will have to make a judgment call as to whether there's more likely than not that this is a problem. And ultimately, as they conduct their investigation or as SJP might file a lawsuit saying, what

is this? We want our rights back. We want our funding back. Then it gets litigated in court and then there's discovery, meaning you get the information and the court evaluates that. Now, there have not been lawsuits by SJP against either the private schools or Florida, which might indicate either that there's something to this material support allegation or that there's other stuff that would have gotten out in discovery that they don't want to see the light of day. October 7th and what happens subsequently out here in the U.S. and frankly all over the world

kind of provides this fascinating foil to explore all of these issues directly, right? I mean, I'm sure there are going to be classes taught about this period from multiple perspectives. On campus, it's really led to the scales falling from a lot of people's eyes. Bill Ackman, who's a multimillionaire, billionaire investor, has become the biggest thorn in the side of the Harvard Corporation, the board that oversees the president and everybody else at Harvard. Also was attacking Liz McGill and has become very active on Twitter now, has led the charge of CEOs who said that they wouldn't hire anyone who signed the Harvard letter that blamed Israel for the attack on Israel and things like that. So we're seeing a lot of

external stakeholders, donors, alumni, employers, state legislators, attorneys general's offices, and others that all of a sudden are paying attention. And not just conservatives. This is the point. Middle of the road people who otherwise thought that, well, these complaints from the right about DEI offices or free speech or whatever, that's just whatever it is. It doesn't concern us. But now they're seeing through such an extreme, unfortunate circumstance that a lot of this stuff that's going on just is crushing to the continuation of our institutions of higher education against people becoming educated, the spirit of free inquiry. There's the bureaucratic part that we've referenced. this decolonialism, oppressor-oppressed stuff that's being disproportionately taught in multiple academic departments that's really poisoning the minds of students.

And of course, students eventually enter the real world. It's not like the stuff magically goes away once they have that diploma in hand. Well, so do you feel like this is an inflection point? It's not like the stuff magically goes away once they have that diploma in hand. Well, so do you feel like this is an inflection point? It could be. I mean, we can't tell. We're in the eye of the storm. We don't know what's going to happen five years from now.

We don't know what's going to happen in the new year. The semester has ended as we record this. Maybe the last final exams are going on. Students return to campus in the new year. There's going to be a bit of a break. We'll see what the latest developments are in the war in Israel, for that matter. There's a very fascinating juxtaposition or correlation between geopolitics and campus governance, really, as well as, you know, what's going on in Congress.

I mean, it's just affected so much of our daily public and private lives these last two months. And also, it seems to be one of the first kind of significant fissures, I think, in what I would call the left, or maybe the extreme left, even. I don't know if that's right. Yeah. I mean, the broad middle, what people who spend all their time online call the normies, the normal people who aren't talking politics all the time, who aren't paying attention to what this or that celebrity tweeted or what have you, are starting to pay attention and they're saying, you know, that's not right. And there's something palpably different

from the decades old conservative complaint that, well, the liberals have taken over the faculty lounge. This is not the Berkeley hippies. In fact, the Berkeley hippies now, you know, Boomer professors, are afraid of this illiberal, radical left that seems to want to cancel, if not kill them, for having divergent views. You just mentioned Oklahoma, that they're defunding the irate in public institutions,

if I understood you correctly. And there's many, many initiatives like this happening. Florida, Texas, Tennessee, South Dakota. I think I'm missing one and a couple other executive orders. And I think that in next year's state legislative sessions, there's going to be more taken up. Yeah, so there's multiple things here. Steve Pinker, who's a Harvard professor, very interesting guy, wrote a piece, an op-ed in the Boston Globe earlier this week as we're recording this that talks about disempowering DEI structures. He's a little softer than abolished DEI, which is what I would propose, but disempower DEI structures. You know, if someone's actually

wanting to make people feel more welcome and included, that's great. The problem is these DEI offices seem to be correlated with decrease in student comfort or feeling of belonging on campus, which is remarkable. Strengthen free speech and actually enforce the free speech protections. Get rid of discrimination by viewpoint in hiring and admissions. So this goes to diversity statements. This goes to faculty who, after all, hire their future colleagues. The members of the sociology department hire the next members of the sociology department or the law school or the medical

school what have you. So get rid of these kind of discrimination based on ideology. Make it just based on merit. There's a couple more that I'm leaving out but I commend that op-ed by Steve Pinker. Fundamentally, it's changing the culture. Deans, presidents, department chairs have all the tools. They're quite good at instilling whatever virtues or cultures that they want, whether that be public service, whether that be inclusion, whether that be entrepreneurship, giving back to the community, whatever, you know, excellence, rigor, whatever you want, they need to instill

ideas, reinstill these classical values of open inquiry, freedom of speech, academic freedom, the idea that education is supposed to make you feel a little uncomfortable, to challenge your views. If all you're ever taught or told in college is things that you already know and are comfortable with, then what's the point of doing four years of that? Hannah Holborn Gray, who's a former president of the University of Chicago, which is one of the exceptions that proves the rule. Now, it's not perfect at UChicago, which is where I went to law school, but they are really the gold standard for free speech policies, institutional neutrality, so universities aren't constantly taking positions on political controversies, and not having ideological

screens for hiring. That's called the Chicago trifecta. The free speech principles, the Calvin Report on Institutional Neutrality, and the Shills Report on Merit-Based Hiring. But anyway, she said, President Hannah Holborn Gray, that education, the purpose of education is to take you out of your comfort zone and make you feel uncomfortable. That is how you grow. I mean, that's a measure of learning when you're feeling, oh,'t have this concept yet I'm not sure whether I agree with that I've never heard that before let me evaluate that let me apply these critical

thinking skills that I've been taught to this new problem. I mean that is what education and learning is. It's not saying that idea offends me so much or threatens my existence as a person. I mean come on this is this is part of the problem we've brought in these cognitive behavioral therapy ideas of safetyism. That is not the way that we engage in open inquiry. That's not the way that we discuss things. It's shutting the door to learning. And so, again, university officials have to counteract that. They have to put in a culture of open inquiry and a freedom to say something that someone else might not like.

There's a whole cohort, maybe even a generation, I don't know, of young people who have been deeply schooled in this kind of ideology. And I think, I don't think it affects everyone equally because it's, I find, I call it kind of an anti-reality ideology and some people are just not gonna go with that. But nonetheless, we are seeing, you know, I'm thinking back to COVID time and there was that letter of 2000 odd health professionals that said, well, we should suspend, you know, we destroyed the global economy to shut everything down,

but because racism is an issue, that's actually a more important thing than this virus. You see what I'm getting at. In medical schools even, which is you would think that these kind of things couldn't get into, this kind of thinking, right? No, this DEI ideology, its most worrisome exposition is in medical schools, where it's not just affirmative action or preferences that allow people that are less qualified than others to get in, to take these spots, to become doctors. It's even for the standardized tests to become a doctor, the various certifications you need to become a doctor, or even grading of classes at these places because there's a supposed disparate impact that certain racial minorities, and Asians don't count, of course, for this, are disproportionately in the lower tiers of our Jews apparently or right right but but are in lower tiers of academic achievement that

makes the whole endeavor illegitimate and so we need to change the way we produce our doctors that's scary it's also scary in law schools because which is what I've been studying and I have a book coming out next year called canceling justice the illiberal takeover of legal education because lawyers are the gatekeepers of our political and legal institutions. The Constitution, as we've seen with speech policies on campus, that's a parchment barrier. If people don't understand it, don't want to enforce it, it's not a self-enforcing mechanism. And so if our future lawyers don't believe that there's

objective truth or think that the adversarial system where everyone gets a proper defense and you're innocent before you're proven guilty and you get due process, if they don't believe in that, well, Katie, bar the door. Then we've lost America. Talk about systemic. You hear that word a lot. This appears to be a systemic problem. Here's the thing. I'm preternaturally optimistic. I'm not sure about higher education. I'm less pessimistic than I was a year and a half ago when I left Georgetown. So we are now in the eye of this storm and maybe even there's hope for higher ed. Luckily my oldest son is about to turn eight so we have about ten years to see the lay of the land. But America more broadly, society more broadly, I have quite a bit of optimism.

Like Justice Brett Kavanaugh discussed at his confirmation hearing, I live on the sunrise side of the mountain. And as kind of more average people, or even elites that aren't politically active, like the Bill Ackmans of the world, as they pay attention and they see that there are these pathologies, that there's this rot, all it takes is not acquiescing to it, because it is certainly not a majority view, even among the youth. There's not majority support for that. We've seen that in the pushback to Bud Light. We've seen that in the pushback to Bud Light. We've seen that with Netflix. There was some spat over Dave Chappelle's trans jokes and what have you.

Anyway, we've seen green shoots in corporate America. And I think with the Israel Hamas developments, as more and more normal, average, nonpolitical people are observing, well, some of these weird things seem to have escaped the sociology lab. They're standing up to it rather than just trying to keep their head down and not be canceled because there's safety in numbers. If the silent majority, as it were, or the non-politically active majority says, you know, that is nonsense. We're not going to allow it, whether it be in our corporations, in our prosecutors' offices, in, you know, any civic organizations, what have you. That's what's going to take to stop it. So, you know, as we finish, I want to go back to

these university presidents, because one has resigned, as we discussed, but in the case of another one, Harvard, Harvard seems to have heavily doubled down on keeping her. And it seems that Harvard has said that they're doing this not for meritorious reasons, but because they don't want to give a win to Elise Stefanik, the Republican congresswoman who did the most damaging questioning of the presidents, and they don't want to give a win to Bill Ackman for his for his activism both online and wallet related we'll see I mean a lot of people are saying that Claudine Gay the Harvard president just is is too damaged in a sense there's some those of us who want, who criticize academia,

who love it to be completely reformed, there's utility both in the McGill resignation and in Gay staying on to continue being that example of everything that's wrong with higher ed, especially at its most elite levels. Harvard President, Claudine Gay, has resigned from her position since the recording of this interview. There's one mantra that I learned, I took to heart during my saga with Georgetown, and that is the writing of Alexander Solzhenitsyn, the dissident Russian critic, illiberal himself in many ways. He was very Eastern Orthodox and didn't like parts of the West as well, decadence in certain things, that kind of critique.

But coming out of the gulag, where he had spent some time, his big lesson was live not by lies. They might put you to death. They might arrest you. They might discipline you in lots of ways, they being the liberal oppressors from right, left, or wherever. But don't let the lie prosper through you. Because the more people that refuse to do that, you solve the collective action problem. You have society point out and recognize that the emperor has no clothes. And that's fundamentally how you have transformative change. Well, Ilya Shapiro, it's such a pleasure to have had you on.

ILYA SHAPIRO It's a great discussion. It's not often you get to spend this much time going in depth, but these are important issues at a pivotal time in our nation's history and the West's history. Well, thanks for being with us. Thank you all for joining Ilya Shapiro and me on this episode of American Thought Leaders. I'm your host, Jan Jekielek.