Pro free speech, against antisemitism

They’re not oil and water, at least not for me

Recently I wrote an op ed for The Age, regarding an unfortunate incident on my campus where a Jewish professor was harassed and stalked by protesters.

In my byline I explained that I am a member of both the Australian Academic Alliance Against Antisemitism (5A) and the Free Speech Union of Australia.

Photo by Brian Wangenheim on Unsplash

The main criticism I’ve had in relation to the article—apart from the usual nonsense¹—is that I cannot be both pro free speech and anti antisemitism. I suspect I am the only person in Australia who is a member of both organisations. If you’re a fellow lone voice crying in the wilderness,² please tell me.

Perhaps my mind is an odd place, but I believe that I can be both of these things at once. Let me explain. If Pro-Israel protesters had behaved in this way to a Palestinian professor, I would have written the exactly same thing as I wrote in relation to Professor Prawer, and I would have been just as outraged. Indeed, when an acquaintance suggested to me that it was okay to harass a Palestinian person on campus wearing a t-shirt with, “From the River to the Sea”, on the basis that these words advocated genocide, I said in no uncertain terms that I believe it would be unacceptable to harass the person, and I’d regard it as a civil wrong.

In part, this is because we are in Australia, in a liberal democracy, on a university campus, where the free exchange of ideas is necessary, even if one finds someone else’s view extremely offensive.

The problem with the Middle East dispute is that it is existential—each side believes that they are fighting for their very right to survival—and indeed, in the territory where war is occurring, this is true. Because the threat is regarded as existential, even here in Australia, it has become verboten to question someone’s response to what they perceive as a threat to their existence. As a result, people on both extremes of the current Middle East dispute have said to me, “Surely it’s okay to confront people aggressively, if you’re afraid that the person you confront supports genocide and wants to kill you.”

No, it’s not. I don’t care what the dispute is. Indeed, it is precisely this kind of aggressive response which leads to genocide: a belief that one must harass and confront the other side first, before they attack you and wipe you out. Please do not bring this behaviour onto campus.³ The reason why many people come to Australia is to escape these existential conflicts.

In my view, it is the destruction of civil society, social norms and law which allows for genocide. This is precisely why I feel compelled to stand up against aggressive incidents and the targeting of individuals on campus. It’s notable, as Timothy Snyder has observed, that the majority of the deaths in the Holocaust did not occur on German territory—with the exception of disabled victims—but that the other victims were sent to other jurisdictions (particularly Poland) where civil order and law had already broken down and the normal checks and balances did not operate.⁴

The current view on all sides seems to be that if hate speech towards a particular group is outlawed, prejudice is ceased, and genocide of a particular group is prevented. Consequently, the argument goes, it is necessary to take aggressive action against anything you perceive as hate speech because this action will prevent genocide. Alas, laws outlawing hate speech did not stop Hitler’s rise, or prevent World War II and the Holocaust from occurring. What really mattered was the fact that physical confrontations weren’t managed, and civil unrest was very common in Weimar Germany.

Greg Lukianoff of the Foundation for Individual Right and Expression (“FIRE”) has dealt with this issue in detail. He points out:

Weimar Germany had laws banning hateful speech (particularly hateful speech directed at Jews), and top Nazis including Joseph Goebbels, Theodor Fritsch and Julius Streicher actually went to jail for violating them. The efforts of the Weimar Republic to suppress the speech of the Nazis are so well known in academic circles that one professor has described the idea that speech restrictions would have stopped the Nazis as “the Weimar Fallacy.” The Weimar Republic not only shut down hundreds of Nazi newspapers — in a two-year period, they shut down 99 in Prussia alone — but they accelerated that crackdown on speech as the Nazis ascended to power. Hitler himself was banned from speaking in several German states from 1925 until 1927.

Far from being an impediment to the spread of National Socalist ideology, Hitler and the Nazis used the attempts to suppress their speech as public relations coups. The party waved the ban as a bloody shirt to claim they were being targeted for exposing the international conspiracy to suppress “true” Germans.

Lukianoff goes on to explain in the post linked above why the Rwandan genocide can be distinguished, and why the radio broadcasts leading to these events would not be protected free speech under the laws of any country.

Obviously, my position on free speech is inconsistent with one of 5A’s stated missions, which is to have a particular more stringent definition of antisemitic hate speech adopted. In discussions within the group, my different approach and views were immediately evident, but I think people have become used to me now. On balance, I think it is better that I continue to be part of the organisation than not, for as long as people will still have me as part of the group, and listen to my point of view. I’m the free speech “sea anchor.”

Why am I standing up for Jewish people in particular right now? After all I’m a person with a mixed ethnic background—primarily Anglo-Celtic—raised with no particular religion or faith. Personally, I owe many individual Jewish people a debt of gratitude. They have supported me and helped me over a span of many years.

However, whether I agree with someone or not—or whether I like them or not—is not to the point. I can disagree with someone entirely, or even positively dislike them, and still defend them. To be honest, I don’t know anyone on this planet who agrees entirely with me. My sister is probably the closest to my views, but even she and I have some ding-dong arguments on some issues!

Interestingly, I observe that people on both sides are upset that they are not being treated equally. Pro-Palestinian activists point out to me that many Australian tertiary institutions issued statements of support for Ukraine in the current Russia-Ukraine conflict, but no such statements have been issued in support of Gazans. They have pointed out that some of the tactics they are using to silence pro-Israel voices are similar to the ones that pro-Israel activists have used in the past, and asked why they cannot use these tactics to protect themselves. They say they cannot get their opinions into circulation because they are regarded as antisemitic.

Jewish people who are pro-Israel point out that, while the “cultural safety” or hurt of other minority groups seems to lead tertiary institutions to intervene to prevent hurtful speech, it has not been applied to Jewish minorities on campus in the context of this conflict. Indeed, while other groups are protected from the smallest insults, actual physical attacks upon Jewish people have occurred on campuses. The testimony of the Ivy League presidents illustrated the double standards. People who ordinarily would have rushed to halt “micro aggressions” towards any other minority group were defending actual acts of violence towards Jewish or Israeli students or staff, displaying a sudden startling commitment to freedom of speech and academic freedom. Moreover, pro-Israel Jewish and Israeli people say they cannot get their opinions into circulation because suddenly, academia and the arts world has silently closed ranks on them and they find themselves targeted unless they agree with a particular political view, namely that Zionism is racism.

These points are rule of law points: “Why is this conflict being treated differently from another? Why is this minority being treated differently from others?”

For what it is worth, I do not think tertiary institutions should make official statements about which country they support in global conflicts when we have a diverse student body. One must always remember that we might have students from both sides who have lost family members and friends. And it’s not our dispute and does not involve our country. There may be nuances and history that we’re missing. Leave the political opinions to the properly briefed politicians.

I also do not think “cultural safety” per se is a reason to close down debate on any topic. And, as should be evident from my determination to defend any individual monstered by protesters, I would apply the same rules across the board, whether I agreed with the victim’s views or not. We have to work out ways of having difficult conversations about contested topics on campus, rather than failing to have a discussion at all.

Notably, people from all sides have said to me that they feel it is impossible for legitimate concerns to be raised and complain that if they say anything, they’re accused of being a bigot or a racist, or attacked and abused. This impasse will not promote dialogue or lead to peace and understanding. Perhaps there may be some radicals on either side who don’t want peace, and who thrive on division and destruction, but that’s not what I want. I don’t want innocent people to die or be wounded or starve. I want hostages to be freed, and conflict to stop.

In my view, physical harassment and property damage are unacceptable on campus. Yes, I am a classical liberal in this regard. Say what you want (within the confines of the law as it presently stands, including defamation) but harassing individual people crosses a line. In fact, it is extremely counterproductive.

My belief is, “sticks and stones will break my bones, words will never hurt me.” Acta non verba (“acts not words”). Some people have presumed that I must never have been abused for my minority status to have this belief. Then I laugh. As I have outlined before on this Substack, I’ve been disabled since birth. If I let harsh or offensive words touch me, I would never have been able to achieve anything.

Photo by Rachel Powell on Unsplash

I strongly believe that the targeting of individuals by a mob is dangerous, no matter how offensive or dangerous you find their views. I apply this rule to cancellations, doxxing, and harassment, no-platforming, and stalking. Recently I’ve seen people argue, “Yes, but my doxxing and cancellation is okay, and theirs is not”, for example when “@libsoftiktok”, a well known “anti-woke” X-Twitter account, ensured that a working class woman was fired from her job at Home Depot for her view that the assassination attempts upon Donald Trump were justified.

As long as the woman isn’t running around with a gun and acting on her words (something that seems to be happening with increasing and alarming regularity) I don’t think that she should have lost her job, unless her views are interfering with her ability to do her job adequately. In an article in Quillette from 2018, I said:

Sometimes it’s clear to see why someone’s controversial comments have an impact on their employment. For example, the former Victoria police assistant commissioner resigned after it was revealed he had made racist and sexist comments online under a pseudonym, including about colleagues and the commissioner. Given that he was the head of the police’s ethical standards body, his own ethics and neutrality were clearly called into question. But often, the offensive conduct is private and has nothing to do with how people perform their job.

Should a doctor be able to practice medicine because she opposes same-sex marriage, or should a reporter be able to keep his job if he criticizes Australia’s military history on Anzac Day? It’s my guess that depending on their politics, many Australians would passionately say yes to one but no to the other. So no matter what our political position when we express controversial views, whether from the left or the right, we count on offense, backlash and calls to get that person sacked. When we enter the realm of controversy, both sides want retribution and one of the most damning things you can do to a person is take away their livelihood.

I am, of course, aware that activists on both sides of the Middle Eastern conflict have engaged in this behaviour, and that until recent years, pro-Israel activists have had the upper hand in terms of cultural power to cancel someone. Now, the balance is shifting, and, in some instances, “mutually assured cancellation” has become the norm. One side attempts to cancel someone, the other side retaliates, and so it goes.

I know for sure that if people try to get a person fired or cancelled for their views, it is counterproductive. From the point of view of the canceller, it might look like they are successful. The individual is gone from their job, and people do not publicly express these views any more. Short-term, it works. Long-term, not so much.

From the point of view of the cancelled, their view does not change. If anything it makes them more set against the cancellers, and can drive them into hating the cancellers, or at least, dismissing anything the cancellers say as worthy. Often, the cancelled is inundated by private support. People think, “If this person is not being allowed to speak, there must be a hidden truth.”

I have had people tell me that I am “not allowed” to hold a particular view, and suggest that I should be sacked or shunned. I am afraid this made me hold onto my views even more firmly. Conversely, if someone sits down me, listens to my view, and rationally explains why their view is different, without shutting me up or demonising me, I will always think about it.

Cancellation or doxxing or public censure, without responding to the substance of the argument or listening to the other person’s view, means that the view which was regarded as objectionable bubbles along under the surface, but because it now can’t be publicly expressed, it is not checked by rational feedback from others with a different view. Long-term, cancellation, doxxing and the like is a disaster. When the cancelled views finally spew out from under the surface, they’re twice as rebarbative as before.

My views in this regard are of long standing. In 2018, I also said:

Fundamentally, we have to stand against social media mobs who call for a person’s sacking simply because the person was offensive. Employers must make a measured decision on the basis of the legality of the situation. I’m not saying that a person can never be sacked on the basis of being offensive on social media (sometimes it is clearly right that a person is sacked), but I am saying that we should resist mobs and think about the position of the employee dispassionately. Private law may help us to challenge employers who buckle at the first sign of anger on social media; it encourages a measured view of disagreements.

We do not want a society where self-help becomes dominant, because in such a society, decisions are made in anger, and almost always result in some level of injustice. Moreover, it is bad for society if we cannot freely exchange ideas. Unfortunately, being open to different ideas means that sometimes you get offended.

Every now and again, a libertarian friend wishes for a society where we all exercise “self-help” and take the law into our own hands. As a lawyer, I think this is a very bad idea. Excessive “self-help” can result in disaster, anarchy and literal murder, because people are not reasonable. We do allow “self help” in the common law, but only where it is reasonable.

One reason why humans accepted the Leviathan of the state apparatus is because while the state can be predatory, there are definite benefits to it, including protection from others, and a reduction in spirals of violence and vendettas.⁵

Liberal society is built on tolerance: the idea that we may not always like each other’s view but we tolerate each other. I can ask people to tolerate me—and as part of that, I can ask that the law ensures that they do not physically assault me, defame me, commit crimes, harass me, or trespass upon my property—but I cannot ask people to accept me or affirm me, or to accept and affirm beliefs which are important to me. Not everyone is going to like me or what I stand for.

The notion of civil society is really important: a society has a system of laws to prevent disputes getting out of hand and becoming physical. Anarchy and a lack of civil society is dangerous; it is in those circumstances where the law breaks down that genocide can occur, I believe.

So, now you know how I can be pro free speech and against antisemitism. You don’t have to agree with me—I suspect many or most people don’t—but I’ve tried to explain why I hold the views I do. I’d allow people to say things, but when they start taking actions which involve civil or criminal wrongdoing, or incite violence, this crosses a line. If they do this in an otherwise peaceful liberal democracy which is not a combatant in the conflict in question, I have limited patience.

People say, “Civil wrongdoing is necessary for protest.” Maybe that’s true in an authoritarian police state where draconian laws are enacted to prevent any kind of dissent, but in a Western liberal democracy, it’s far less the case. Moreover, just because you commit a wrong in the context of protest doesn’t mean it magically becomes somehow “right.” The very point is that you have contravened the laws which keep our society civil. And “I think that I’m acting justly and on the right side of history” is not a defence. I’m sure many people who committed terrible atrocities thought they were on the right side of history too, at the time they did these things.

That is why protest must be managed to ensure that it is reasonable and does not break civil society apart. Allow free speech; don’t allow violence or vendettas or civil and criminal wrongdoing. A difficult balance, but one I believe that we have to get right.

~o~O~o~

This evening, I am speaking with Helen Dale at The Oxford Scholar, for the Free Speech Union of Australia, 5pm for 5:30pm, on perverse incentives in academia.

Please buy tickets here.

Helen and I blogged together for many years. It is fair to say that we disagree on many issues, but our debates are robust and productive of deeper thought. How can I learn, if I am not pushed by those who disagree with me?

1. (1) “What-aboutery”: why are you caring about this when so many Palestinians are dead? Answer: There is not I can do about that, right now. I know that nothing I say or do is likely to have any impact whatsoever on the Netanyahu government. In fact, the more monstered the Jewish diaspora is, the more reason Netanyahu has for suggesting a vicious approach. However, there is something I can do to prevent someone I know in my own institution being harassed and stalked.

(2) “You’re a supporter of genocide/racist/Nazi”: Absolutely not. In any case, this riposte is not the way to encourage peace or dialogue, or to resolve this tragic conflict.

(3) “Where is your support for Muslim/Arabic people being harassed?”: More than happy to support any staff member or student of any background or belief who is on the receiving end of harassment or stalking of the kind which occurred to Prawer, and to speak out against it very firmly in national media outlets. Rule of law applies. If it’s unacceptable for one group, it’s unacceptable for another.

(4) “Prawer deserved to be harassed and stalked, he’s a Jew/Zionist”: I invite you to take a long walk off a short pier. Splooosh. No one deserves to be harassed and stalked like this.

2. Isaiah 40:3.

3. As a result, I now have the distinction of being accused by people from both sides of supporting genocide because I won’t sanction harassing or aggressively confronting people with views they find objectionable. Three cheers for me! Means I’m doing something right, in my view. NB: For the avoidance of doubt, I do not want any group to suffer genocide.

4. See generally, Timothy Snyder, Black Earth: The Holocaust as History and Warning (Penguin, 2015).

5. Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined (2011).