A common misapprehension about the First Amendment is that it protects the right to free speech for U.S. citizens. It doesn’t.
What the First Amendment actually does is bar the government from “abridging the freedom of speech.” But, as scarcely needs to be said, the government is not in charge of everything, and the rules by which it must abide have no power to constrain the censorial impulses of others. Private entities, including private universities, can still deny others the ability to say what is deemed in the passions of the moment to be the wrong thing.
Just ask Rabea Eghbariah.
The Palestinian human rights attorney at the Haifa-based Adalah legal center and doctoral candidate at Harvard Law School had an article he wrote for the prestigious Harvard Law Review spiked in November after it had gone through several edits, been fact-checked, copy edited, and approved for publication.
This decision was made by a majority vote of the publication’s board after several days of debate and nearly six hours of discussion at an emergency meeting on November 18. Eghbariah received an email from the law review’s president, Apsara Iyer, who claimed: “While this decision may reflect several factors specific to individual editors, it was not based on your identity or viewpoint.”
But the publication’s online editor, Tascha Shahriari-Parsa, explained it differently. “The discussion did not involve any substantive or technical aspects of your piece,” he told Eghbariah via email. “Rather, the discussion revolved around concerns about editors who might oppose or be offended by the piece, as well as concerns that the piece might provoke a reaction from members of the public who might in turn harass, dox, or otherwise attempt to intimidate our editors, staff, and HLR leadership.”
Eghbariah’s 2,100-word essay, which was subsequently published by The Nation, argued that the state of Israel’s devastating assault on Gaza in the wake of Hamas’s savage October 7 attack fell within “the legal framework” of genocide. “It is much easier,” he writes, “to consider genocide in the past tense rather than contend with it in the present. Legal scholars tend to sharpen their pens after the smell of death has dissipated and moral clarity is no longer urgent.”
The word “smell” in this last sentence links to an article describing how the stench of dead bodies is currently palpable in Gaza. The piece goes on to say, with links backing up each contention:
“Israel continues to blatantly violate international law: dropping white phosphorus from the sky, dispersing death in all directions, shedding blood, shelling neighborhoods, striking schools, hospitals, and universities, bombing churches and mosques, wiping out families, and ethnically cleansing an entire region in [a] both callous and systemic manner. What do you call this?”
Eghbariah, in his essay, cites a report, issued by the Center for Constitutional Rights early in the Israeli onslaught that would only get much worse, that found “a plausible and credible case that Israel is committing genocide against the Palestinian population in Gaza.” He quotes Raz Segal, a historian of the Holocaust and a genocide studies expert, who calls what’s happening “a textbook case of Genocide unfolding in front of our eyes.” Segal notes that a sizable number of international scholars, a group of seven United Nations Special Rapporteurs, and thirty-six U.N. experts have used the G-word to describe what is happening.
Aslı Bâli, a Yale Law School professor and expert on international and human rights law who reviewed Eghbariah’s essay, told The Intercept it was an “excellent piece of legal scholarship” and “exactly the kind of work that good international legal scholarship should do.”
The Harvard Law Review, having invited Eghbariah’s analysis and accepted it on its merits, should not have shut the door on publication because, on second thought, it might make some people angry.
None of this ends the need for discussion over what Israel is doing or how to respond to it. None of it means Eghbariah’s essay is perfectly reasoned and beyond dispute. (I, for one, think his assertion that Amnesty International and Human Rights Watch “are no longer to be trusted” because of their responses to this crisis is way overblown and void of substantiation.)
But any fair analysis must conclude that Eghbariah has raised an issue that merits consideration, not suppression. The Harvard Law Review, having invited Eghbariah’s analysis and accepted it on its merits, should not have shut the door on publication because, on second thought, it might make some people angry.
“This is discrimination,” wrote Eghbariah, in one of his responses to the editors who put the kibosh on his piece, which would have been the first published piece written by a Palestinian scholar in the law review’s history. “Let’s not dance around it. This is outright censorship. It is dangerous and alarming.”
He was not the only one who found it so. A group of twenty-five Harvard Law Review editors sounded an alarm about the decision, which they pegged as unprecedented.
“At a time when the Law Review was facing a public intimidation and harassment campaign, the journal’s leadership intervened to stop publication,” they wrote in a statement. “The body of editors—none of whom are Palestinian—voted to sustain that decision. We are unaware of any other solicited piece that has been revoked by the Law Review in this way.”
The “public intimidation and harassment” mentioned in this statement refers to the massive blowback that Harvard received in response to an open letter from pro-Palestinian campus groups holding Israel “entirely responsible for all the unfolding violence.” Former Harvard president (and also former U.S. Treasury Secretary) Larry Summers blasted the failure of university leaders to condemn this expression. This prompted Harvard’s current president, Claudine Gay, to condemn Hamas in no uncertain terms while rejecting calls to punish the students, saying the university “embraces a commitment to free expression.”
If only that were so.
While Eghbariah saw his essay published in The Nation and defended by scholars, others have paid a steep price for being purportedly too harsh in their assessment of Israel’s response to the savage October 7 attack that claimed 1,200 lives—a response that, to date, has resulted in the deaths of some 15,000 Palestians, including 6,150 children and 4,000 women.
Actress Melissa Barrera was booted from the upcoming film Scream 7 for posting statements on Instagram using the terms “genocide and ethnic cleansing” to describe Israel’s actions. “Gaza,” she wrote, “is currently being treated like a concentration camp.”
The film’s production company said in a statement: “We have zero tolerance for antisemitism or the incitement of hate in any form, including false references to genocide, ethnic cleansing, Holocaust distortion or anything that flagrantly crosses the line into hate speech.”
Barrera quickly clarified that she condemns antisemitism and Islamophobia and “hate and prejudice of any kind against any group of people,” to no avail.
Actress Susan Sarandon, meanwhile, was dropped by the United Talent Agency after a November 17 appearance at a pro-Palestinian rally in New York City, where she said, according to press accounts, “There are a lot of people afraid of being Jewish at this time, and are getting a taste of what it feels like to be a Muslim in this country, so often subjected to violence.” She also said, at the same rally: “There’s a terrible thing that’s happened where antisemitism has been confused with speaking up against Israel. I am against antisemitism. I am against Islamophobia.”
These decisions to punish speech, however questionable, are being made by private companies engaged in enterprises whose entire purpose is to make money. A university like Harvard, and a publication like the Harvard Law Review, at one time headed by Barack Obama, ought to have a greater fidelity to the defense of speech.
For the same reason that the protections of the First Amendment clearly serve the public interest in allowing a flow of ideas free from government interference, a private university like Harvard should recognize the importance of allowing even unpopular opinions to be heard.
Instead, universities are at the forefront of efforts to crack down on anti-Israel expression. In recent weeks, Columbia University and Brandeis University have both suspended the campus chapters of Students for Justice in Palestine and Jewish Voice for Peace, claiming these groups have violated campus policies and posed a safety risk. Palestine Legal, a group that defends the free speech rights of Palestine advocates, reportedly responded to nearly 200 reports of “suppression of Palestinian rights advocacy” in just the first eleven days following the October 7 attack, “many involving harassment and censorship attempts by university administrations and rightwing organizations.”
As the campus free-speech group FIRE (Foundation for Individual Rights and Expression) has framed the issue: “Private universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselves—and sold themselves—as bastions of free thought and expression. Accordingly, private colleges and universities should be held to the standard that they themselves establish. If a private college advertises itself as a place where free speech is esteemed and protected—as most of them do—then it should be held to the same standard as a public institution.”
For the same reason that the protections of the First Amendment clearly serve the public interest in allowing a flow of ideas free from government interference, a private university like Harvard should recognize the importance of allowing even unpopular opinions to be heard. In this instance, it failed miserably.