The identitarian left cannot go on as it did before the attacks.
America’s free-speech culture is in sudden flux and some peril. Since October 7, when Hamas launched an attack that included killing, raping, and kidnapping, the Israel-Palestine debate has been the most common trigger for street protests in America. Reports of hateful speech and hate crimes are surging. And for the first time in the “cancel culture” era, campaigns to get people fired from their job are more likely to involve Israel or Palestine than controversies about race, gender, or sexual misbehavior. Even if the Middle East faded from the headlines tomorrow, Congress, the federal civil-rights bureaucracy, and many elite colleges have already upended the coalitions that have shaped our free-speech culture.
Old-school liberals can simply go on championing free-speech values. But the “woke” or “identitarian” left cannot go on as before. Having long agitated for more sweeping speech restrictions and taboos, they now confront a dilemma: They do not want “woke” hate speech or sensitivity standards applied to Palestinian-aligned activists, and they are unwilling to police speech that unnerves many Jews in the way that they policed speech they considered upsetting to other identity groups; yet they cannot subject Jews to such a blatant double standard without alienating many Americans and losing moral standing and attendant influence.
Conor Friedersdorf: Students for pogroms in Israel
It is too early to know what the next phase of America's speech culture will look like. One faction wants to resolve the double standard by treating Jews as the woke left treats Black and brown people and members of the LGBTQ community—to grant them the status of an oppressed group and to police speech on their behalf. A more farsighted faction wants everyone to get equal treatment, regardless of identity, when speaking or being spoken about. This conflict is especially hard for institutions that moved away from old-school-liberal speech attitudes toward leftist identitarianism, and created diversity, equity, inclusion, and belonging bureaucracies, only to treat Jews inequitably while leaving many Jews and Palestinians alike feeling slighted and aggressed. Why conserve that?
The first free-speech culture we each encounter seems like it will last forever, until it doesn’t. In the 1990s, teens loved telephone conversations and older people fought about flag burning, political correctness, rap, and pornography. The censorious factions lost most of those fights, defeated first in the federal courts and then by a youth culture that didn’t want the Gores or the Moral Majority deciding what we could watch or hear. At the same time, racism and homophobia declined without the stick of cancellation.
A new era began after the attacks of September 11, 2001. Many Americans wanted to process the attacks out loud, inspiring the growth of the blogosphere. Americans fought about the PATRIOT Act, police treatment of anti-war and anti–Republican National Convention protesters, and the propriety of publishing cartoons that depicted the Prophet Muhammad. The First Amendment remained a bulwark. But authorities engaged in widespread spying on Muslim Americans, chilling their speech. There were proto “cancel culture” controversies, too–– targets included Ward Churchill, Bill Maher, and the Dixie Chicks.
In 2008, I expected Barack Obama to bring in a new, post–War on Terror chapter, defined by civil libertarianism. Oops. The National Security Agency continued to secretly spy on private communications. The Obama administration persecuted whistleblowers. Occupy Wall Street protesters were abused as readily as their aughts analogs. And state attorneys general began to crack down on commercial speech related to sex work.
A distinctly new era began around 2013, when free-speech culture as a whole began contracting, even as smartphones and social-media platforms made it possible for more people than ever to reach a mass audience. Many used new digital tools in constructive ways. Creativity flourished. Subcultures bloomed. Horrific policing abuses were documented and exposed on video as never before, a change that fueled Black Lives Matter, the most significant protest movement of the 2010s.
But countless Americans abused the hyperconnected digital landscape by participating in neo-puritan public shamings. Academics incubated a newly illiberal free-speech culture (informed by 1980s critical race theorists and their intellectual descendants) that blurred the crucial distinction between words and violence, redefined unintentional slights as a form of aggression, and treated free speech as an impediment to racial justice rather than the universalist bedrock of equal rights.
Champions of free-speech culture found themselves at odds with the ideological left as often as the right––and on the identitarian left, as on the alt-right, ideas were more and more often judged by a speaker’s identity rather than the substance of the speech. A new class of professional speech monitors arose. These assistant deans, DEI consultants, sensitivity readers, and disinformation “experts” enforced speech taboos that changed too quickly to be fully grasped. States took mutually irreconcilable approaches, with “blue” California trying to force its professors to affirm DEI ideology even as “red” Florida tried to prohibit its professors from mentioning that same ill-defined ideology.
Until recently, I thought that the free-speech fights of 2024 would be more of the same, pitting old-school liberals, the woke left, and anti-woke rectionaries against one another. But since October 7, public discourse has been unusually focused on a question upending the left-identitarian speech paradigm: where Jews fit within it.
Jews are a wildly diverse group encompassing individuals who disagree on everything. Still, the question of how to regard Jews as a group arises for left identitarians, because they do not presume that everyone should be treated as an individual or that members of different ethnic identity groups should be treated equally. On matters of speech, the critical race theorists made an explicit case for different treatment for “subordinated groups” and openly probed how Jews would fare. In Words That Wound, a 1993 book that collected seminal essays in the CRT tradition, the law professor and activist Mari J. Matsuda rejected what she called “an absolutist first amendment” position and endorsed “public sanction, enforced by the state,” for racist speech, and for “the closely related phenomenon of anti-Semitism.”
Her essay dedicated a special section to what she dubbed the “hard case” of anti-Semitic speech by “people within subordinated communities.” She ultimately argued for “tolerance of hateful speech that comes from an experience of oppression,” but added that “when that speech is used to attack a subordinated-group member, using language of persecution and adopting rhetoric of racial inferiority, I am inclined to prohibit such speech.” She was also inclined “to criminalize the cold-blooded version of anti-Semitic literature,” including material that denies the Holocaust, in part because its authors were guilty of “defaming the dead.”
Today, Matsuda is an outspoken advocate for Palestinian rights; I was unable to reach her to ask whether she still holds the same views on policing speech that she did in the 1980s. But applying those standards today could criminalize lots of speech protected under a liberal approach. For example, during an Oakland city-council meeting last year, one resident of the city declared, “Israel murdered their own people on October 7!” during a public-comment session. Another said, “The notion that this was a massacre of Jews is a fabricated narrative.” Similarly, a liberal paradigm protected a woman in Miami Beach in November when she yelled, “Hitler should’ve fucking finished the job. He knew what the fuck he was doing.” In a CRT paradigm, those words might have led to her arrest.
Complicating matters, people adjudicating speech conflicts and controversies in the critical-race-theory tradition consider factors that liberals regard as irrelevant. For example, Matsuda’s concern with subordination status might mean that an instance of hate speech is lawful if uttered against Jews by a Palestinian immigrant but unlawful if uttered by a white person or perhaps by a Saudi or Egyptian American. And she argued that “the appropriate standard in determining whether language is persecutory, hateful, and degrading is the recipient’s community standard,” suggesting that Jews and Palestinians could both deem each other guilty.
Of course, the current Supreme Court would never allow the First Amendment to be gutted by CRT logic. But that hasn’t stopped CRT-inspired theories from influencing the way that speech is policed in private institutions, on social-media platforms, and even within federal and state bureaucracies that shape and enforce nondiscrimination laws.
Nevertheless, even as reports of anti-Semitic hate crimes spike across the country and many Jewish Americans declare that they feel persecuted and degraded by speech that they hear, the identitarian left is not canceling anti-Semites or championing new legal penalties for anti-Semitic speech. That seeming double standard raises questions about whether Jews would be treated equitably in a society run by left identitarians.
Evidence that Jews would be treated neither equally nor equitably under a left-identitarian speech regime is nowhere more pronounced than in higher education (where Palestinian-aligned students also have been censored).
Old-school liberals see colleges as places where especially expansive free-speech norms ought to prevail to facilitate research, teaching, and truth-seeking. In contrast, the CRT tradition holds that tolerance of racist speech on campus is “more harmful than generalized tolerance in the community at large,” as Matsuda put it. Another pioneering critical race theorist, Charles R. Lawrence III, endorsed campus disciplinary codes that prohibited speech or pictures intended to convey hatred or contempt on the basis of sex, race, color, disability, religion, sexual orientation, or national and ethnic origin. “Psychic injury is no less an injury than being struck in the face,” Lawrence wrote, “and it often is far more severe.”
With that standard in mind, recall that after the October 7 attacks, the national organization Students for Justice in Palestine circulated a poster urging a “Day of Resistance” with iconography of a paraglider, an allusion to Hamas fighters who flew into Israel to slaughter civilians, kidnap children, and perpetrate other war crimes.
Doesn’t that constitute “psychic injury” to a national-origin group?
More generally, campus bureaucrats at selective colleges have sought for years to police “microaggressions,” to create “safe spaces,” to stigmatize speech that undermines subjective feelings of “belonging” on campus, and to define what is permissible by invoking the experience of the offended rather than objective standards. Applying those standards to Palestinian-aligned activists would silence many of them.
Yet when summoned before Congress in December and asked whether calling for the genocide of Jews violates their school’s code of conduct or harassment policies, the presidents of Harvard, the University of Pennsylvania, and MIT all answered, more or less, that it depends on the context––that if calls for the genocide of Jews rise to the level of incitement or harassment, then yes, but if not, then no.
The testimony provoked furious denunciations, assertions that of course calling for genocide ought to violate campus rules, and demands that those presidents resign (the president of Penn resigned quickly; the president of Harvard stepped down several weeks later, after multiple accusations of plagiarism). But old-school liberals had a different reaction. The NYU social psychologist Jonathan Haidt, a longtime free-speech advocate, posted this:
I can sympathize with the “nuanced” answers given by U. presidents … about whether calls to attack or wipe out Israel violate campus speech policies. What offends me is that since 2015, universities have been so quick to punish “microaggressions,” including statements intended to be kind, if even one person from a favored group took offense. The presidents are now saying: Jews are not a favored group, so offending or threatening Jews is not so bad. For Jews, it all depends on context. We might call this double standard institutional anti-semitism.
University presidents: If you’re not going to punish students for calling for the elimination of Israel and Israelis, it’s OK with me, but ONLY if you also immediately dismantle the speech policing apparatus and norms you created.
Haidt is correct about the double standard. In October 2019, for example, Penn shut down a speaking event featuring former Immigration and Customs Enforcement Director Thomas Homan when it attracted rowdy student protesters. At MIT, a 2021 speaking invitation to the University of Chicago geophysics professor Dorian Abbot was rescinded to placate critics offended by his argument that DEI as it was currently being implemented “violates the ethical and legal principle of equal treatment.” In 2022, the feminist philosopher Devin Buckley was disinvited from delivering a lecture on British romanticism at Harvard because of her opposition to aspects of the transgender-rights movement. None of that speech approaches the odiousness of urging genocide, yet it was treated as unspeakable.
Like Haidt, I prefer the liberal resolution of the double standard: abolish the speech police. What about the urging genocide? Unambiguous advocacy of genocide is vanishingly and blessedly rare; what qualifies is hard to define, and policing common definitions is likely to chill speech that should be protected in an academic setting (the UCLA law professor Eugene Volokh offers specific examples). What’s more, many activists and critics in the international community accuse Israel of genocide for its military campaign in Gaza and deem advocates of that campaign complicit. Will Jews in America be better or worse off if left-leaning bureaucracies start meting out punishments for urging genocide as they define it?
As the George Mason University law professor David E. Bernstein argues, the stronger critique of how universities have been behaving since October 7 is not that they have failed to crack down on “hate speech,” but that many have failed to enforce their own rules about harassment, vandalism, and more. All students ought to be protected from those ills. Within the liberal paradigm, colleges can treat Jewish students subject to unprotected speech and harassing acts better than they have been.
But matters are not entirely in the hands of college administrators. Multiple institutions, including Columbia, Cornell, Harvard, Wellesley, and Penn, are under investigation by the U.S. Department of Education’s Office of Civil Rights for possible discrimination against Jews. Many on the right take pleasure in this turn, but it could lead to further empowerment of the very bureaucrats they purport to distrust. After all, staffers at the Department of Education and in universities are disproportionately left of center. While careful civil servants could target anti-Semitic harassment in a way that safeguards constitutionally protected speech, they could also target it overbroadly in a way that causes colleges to give more DEI bureaucrats more power to police speech of all sorts.
David Frum: There is no right to bully and harass
In fact, Republican officials are making that more likely. Thanks to Representative Mike Lawler, Congress is considering an appropriations bill with a provision that purports to address anti-Semitism on college campuses. If enacted, the Foundation for Individual Rights and Expression warned in a letter urging the bill’s defeat, “colleges and universities will be highly motivated to stamp out speech.”
At Yale, more than 1,400 alumni, faculty, and parents have signed a letter to the university’s president that alleges that the student group Yalies4Palestine “supported the Hamas attack.” The letter objects to student activists shouting “When people are occupied, resistance is justified” and “the infamous ‘from the river to the sea,’ which calls for the genocide of Jews who live between the Jordan River and the Mediterranean Sea.” I feel conflicted. I have contempt for campus Hamas apologists, whom I’ve dubbed “Students for Pogroms in Israel.” I also grieve the many innocent Palestinians killed in this conflict. I think protesters should understand that many people who hear the phrase “From the river to the sea” always perceive genocidal intent, even though many young people chanting it do not have genocidal intent. I’d urge activists to choose chants that avoid such ambiguity.
Still, I do not think that Yale should stop students from chanting “From the river to the sea.” When your classmates have wrongheaded ideas, silencing them by administrative fiat does not make those ideas go away. Meeting them with counterspeech might be effective and will certainly better prepare students for the real world. I have recently observed street protests where people chanted “From the river to the sea” in New York City, and several cities in California: San Francisco, San Luis Obispo, and San Marcos. I understand feeling alarmed or upset by that chant, but in a diverse, pluralistic society, reality is frequently both alarming and upsetting. Aren’t college students supposed to be learning how to navigate reality rather than evade it?
Neither do I think that the identitarian left or the universities where it wields power should continue advancing free-speech norms that are biased against Jews. But the answer isn’t for institutions to elevate Jews in their discriminatory paradigm.
The answer is to adopt a healthier nondiscriminatory paradigm.
The society-wide move away from liberalism toward critical race theory–inflected identitarianism has been a disaster. The 2013-era change coincides with an increase in the percentage of Black and white Americans who feel that race relations are bad. Now that public discourse is focused on the Israel-Palestine conflict, CRT logic would put countless people on both sides of the conflict in legal jeopardy without solving anything.
Indeed, the move away from liberal speech norms is depriving America of the greatest tool that free societies have for living together peacefully in spite of deep differences: the incentives for mutual tolerance and nonviolence that increase when everyone knows that they can have their say in the court of public opinion. Ethnic groups jockeying to shut one another up is a dangerously fraught alternative.
Shortsighted factions on the identitarian left, the establishment center, and the populist right continue to attack liberalism, despite its record of helping humans coexist and prosper. The liberal approach is the only practical, anti-authoritarian, nondiscriminatory way to peacefully resolve America’s most heated political disputes. And Americans are always better off when it is the foundation of an era’s free-speech culture.
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