Last week, the Columbia Law Review’s board of directors shut down its website briefly because of concerns about the process by which the review published an article critical of Israel. The decision quickly called forth charges of censorship. Then the board reactivated the website, leading to allegations that it had “buckled.”
Both the editors and the board pushed against the boundaries of normal procedure. But we should focus on the broader context that shaped everyone’s behavior. An organized right-wing movement is in the business of destroying young people’s careers if they say the wrong thing. That climate of fear is the real threat to higher education, one that reaches far beyond Columbia.
In an earlier incident, a Harvard graduate student, Rabea Eghbariah, wrote a short piece for the Harvard Law Review blog accusing Israel of genocide in Gaza. (Whatever you think of that accusation, it isn’t idiosyncratic. Its merits are best discussed when it is presented in serious scholarly form. More on that anon.) Eghbariah is a Palestinian lawyer who has argued human rights cases before the Israeli Supreme Court. He has won several prizes for his academic work. (And in case it matters, his dissertation supervisor, Noah Feldman, is a Jew.)
In November, Eghbariah’s essay had already gone through edits when the Review’s editors abruptly withdrew the offer of publication, citing “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.” The Review’s president intervened to delay publication, which was then killed in an emergency meeting of editors.
The editors had some basis for their fears.
Immediately after the October 7 Hamas massacre of Israeli civilians, 34 Harvard student groups posted a statement declaring that they “hold the Israeli regime entirely responsible for all unfolding violence. . . . The apartheid regime is the only one to blame.” It was a stupid and vicious claim, rationalizing rape and murder (the extent of which, in fairness, was not known at the time of the posting). It garnered widespread condemnation, and several of the organizations quickly retracted their endorsements.
Then at least four websites used publicly available sources to determine who was a member of those organizations, and posted their personal information online. The most prominent of those groups, Accuracy in Media, drove a truck around Harvard Square with a digital billboard displaying those students’ names and photos, captioned “Harvard’s Leading Antisemites.” (A similar truck later appeared at Columbia and other schools, triggered by statements that were far less egregious.) The students (some of whom had never seen the statement before it was posted) feared for their safety. Some received death threats. Their siblings back at home were harassed. Wall Street executives asked for lists of names to blacklist. Job offers were withdrawn.
AIM’s president never intends to stop tormenting these students. He has said that he is considering sending his trucks to park outside businesses who hire them after they graduate. AIM has been reckless in choosing its targets. Its Columbia truck, for instance, displayed a former president of one of that school’s Islamic organizations, who had left the group months before the October attacks. He is suing for defamation.
Ryan Doerfler, a professor at Harvard Law School who had met with law review staff, said that the decision to cancel Eghbariah’s piece “took place amidst a climate of suppression of pro-Palestinian advocacy.” One of the Harvard editors acknowledged that this climate made it dangerous to have normal conversations about the merits of the article: “We’re not at a point in time where that debate can happen without your face being put on a truck.”
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Egbariah’s piece was ultimately published in The Nation. This whole episode has made him famous. So what’s the big deal?
The big deal is that the Harvard Law Review has been corrupted by fear. Its value is its capacity to select work for scholarly quality. It now has a de facto political litmus test: The editors know that they anger AIM at their peril and respond prudently to that danger. And AIM, which has existed since 1969, is a collection of right-wing cranks. It denies climate change, considers COVID-19 “overhyped,” and calls Barack Obama “a member of an international socialist movement.” These are the last people on earth who should get to veto what the Harvard Law Review can publish.
AIM is of course (occasional defamation aside)
legally entitled to do what it does. It
relies on publicly available sources. But that doesn’t excuse it. Its free
speech rights are like the free speech rights of Nazis marching in Jewish
neighborhoods: unquestionable as a matter of law, but deeply malign. Free
speech includes the right to say horrible things that nobody should ever say. And of course AIM’s threat is not only felt at this one
journal. It reaches beyond Harvard.
Since the Harvard Law Review affair,
AIM has acquired powerful allies, including some members of Congress who grill
college presidents on why they tolerate “hate speech.” Not long ago, speech was
being targeted as “racist.” Now it’s targeted as "antisemitic." Both
types of speech are odious, obviously, but the odium only properly applies to
unambiguous cases. Today, though, such terms are being deployed very
capaciously, with ever-expanding definitions.
Which brings us to Columbia. According to Associated Press, the Columbia Law Review editors “voted overwhelmingly in December to commission a piece on Palestinian legal issues.” It formed a smaller committee to select that piece. It is not unusual to bypass the regular Articles Committee this way: the same is done for symposia and memorial issues. That group then accepted a long article by Eghbariah, titled “Nakba as a Legal Concept.” The piece argues that Palestinians are subject to a kind of oppression not yet recognized in human rights law, and “proposes to distinguish apartheid, genocide, and Nakba as different, yet overlapping, modalities of crimes against humanity.” (I won’t try to evaluate its scholarly soundness, an issue that is hotly contested. The ensuing controversy had nothing to do with that.)
The editors did not upload the piece onto a server visible to the entire membership of the law journal and to some administrators. Instead, they put it on a private server available only to those who were editing the piece. That is the big point of contention. The Board of Directors later wrote that the secrecy was “a profound deviation from the norms of respect, trust, and collegiality on which the Review depends.”
There are two accounts of why the students did this. The first is that a small group illegitimately excluded their colleagues from the editing process. As David Bernstein, a law professor at George Mason, has put it, “the real problem is that a cabal of editors . . . conspired to ensure that anyone who might have objected to publishing the article was kept out of the process.”
The alternative explanation is that the secrecy was an effort to protect the integrity of the process. Intimidation had corrupted decision-making at Harvard. The Columbia editors were guarding against similar corruption. As they put it in a recent statement, “In light of the repressive climate around Palestine, especially in the fall and winter of 2023, we felt this discretion was necessary to ensure that the piece could go through the entire publication process before it was released to the public. We also felt that discretion was not wholly unprecedented, given how CLR has restricted editor access to confidential sources in the past to honor author integrity.” Erika Lopez, one of the piece’s editors, explained: “having seen what happened with the HLR,” the Journal leadership “was concerned that early drafts of the piece would be leaked to the public. We worried that early leaks would prevent the piece from ultimately being published, perhaps due to possible intimidation (which is what ultimately happened last Sunday). Last Sunday, we learned that people outside the CLR staff had learned about the piece prior to its publication, which was exactly what we had always feared.”
The two stories are not inconsistent. A small cabal kept the piece secret, but they felt they had good reasons.
The day before the scheduled publication, the article was disclosed to the review’s entire membership. One student complained to the board of directors, a group of faculty members and prominent alumni. The board then asked for publication to be delayed for a few days, in order, as it later explained, “to preserve the status quo and provide student editors some window of opportunity to review the piece, as well as provide time for the Law Review to determine how to proceed.” One wonders what good thing the board imagined could happen during those days. One might easily anticipate a repeat of the Harvard episode.
The board claimed that secrecy “inevitably raises questions about the adequacy of the editing and substantiation processes to which the piece was subjected.” (That seems silly to me. Articles are always edited and cite checked by a subset of the staff, and the rest of the staff is generally too busy to worry about what is happening on other members’ committees.)
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The law review initially agreed to the board’s request for a delay. According to Lopez, the editor in chief did not consult with the other editors before making that decision, which they refused to support. So the review reneged on the agreement and posted the article.
Lopez says: “Once we had credible evidence that others outside the CLR staff knew about the piece on Sunday night, we feared that we would be intimidated into not publishing at all. The piece committee, in consultation with the current EIC, made the decision to publish early Monday morning to avoid this. It was also the professional thing to do given that Rabea and the six other authors expected the Issue to go live that day.”
That was a poor decision. Even if the delay led to a last-minute rejection like Harvard’s, the review had made a commitment to the board, the editing was done, and the piece was going to be public one way or another.
The board obviously had to respond somehow to this defiance and mendacity. It responded by shutting down the entire website. (Evidently it did not have the technical capacity to just break the link to the article.)
The delay really did only last a few days. The shutdown was on June 3, and the site was reinstated on June 7, including Eghbariah’s article. That was exactly the delay that the board initially proposed. At the bottom of the home page, there was a link to the board’s statement explaining its actions. It acknowledged that its efforts had proven futile, because the students simply posted the article intact to a different website, where it got a lot of attention on social media.
Public reaction to the shutdown was decidedly negative. The New York Times reported that the “decision to suspend access to the website is the latest example of how American universities have sought to regulate expression that is highly critical of Israel amid concerns that it veers into antisemitism.” Times Higher Education wrote that the successive blocking of the article by Harvard and Columbia “fits a months-long pattern of US colleges and universities — prominent and otherwise — complying with demands from politically conservative US lawmakers and wealthy donors that they silence criticisms of Israel and its military attacks in Gaza.”
Joshua Mitts, a law professor at Columbia, told me that a different response would have been better. “Taking down the website,” he said, “exposed the board of directors to allegations of censorship. This was conduct that undermined the procedural integrity of the law review. There was outright deception involved. The appropriate response would be termination of the existing editorial leadership and, at the very least, elimination of their normal ability to select the next year’s leadership.”
The website now displays a statement (somewhat different from the one originally posted) that it had received “multiple credible reports” of a “secretive process” and that “some individuals reporting exclusion expressed concerns with the process and the denial of their opportunity to provide input.” The student editors then voted to go on strike until that statement was removed, demanding total editorial independence. They refuse to perform their editorial tasks or help select next year’s board until their demands are met.
The threat posed by AIM, and others eager to suppress pro-Palestinian speech, hangs over the whole affair. The board’s stated concerns included this troubling sentence: “Whatever your views of this piece, it will clearly be controversial and potentially have an impact on all associated with the Review.” That sounds a lot like a claim that the full membership ought to have had the opportunity to capitulate to anticipated pressure. AP also reported that some of those “involved in the publishing of the article said they heard from a small group of students over the weekend who expressed concerns about threats to their careers and safety if it were to be published.”
Paul Horwitz, of the University of Alabama School of Law, points out that the objection about broken norms cuts both ways. “The board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish.”
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The article, like much legal scholarship, is a piece of advocacy. (Again, I’m not a Middle East specialist and can’t judge its overall soundness, but quality issues were not what got Eghbariah’s two pieces in trouble.) Its point of view is not mine. But I am glad to have seen it. It is good to know how the world looks to a lawyer who has represented Palestinians in Netanyahu’s Israel. I appreciate being able to read a smart, articulate and detailed presentation of ideas that many of my fellow citizens hold. Even where I disagree, it is good to have the opposing view laid out, so that one has a position to respond to. This what universities are for.
Freedom of thought must include the capacity to entertain controversial, and even terrible, ideas. Students cannot learn to think if they are terrorized into silence. They must be able to make bad arguments without lasting personal repercussions. Organizations that harm them for propounding the wrong views are the enemies of education, no less than the thugs who harass Jewish students or vandalize buildings.
The deep issue that this episode exposes is
the climate of fear that influenced everyone’s actions, at both journals.
Columbia happened in the shadow of Harvard. We ought to blame, not the students
or the board, but AIM and its ilk. It can’t be stopped, but it can be stigmatized. It should be regarded with disgust, the way
we regard the Rev. Fred Phelps, who, the Supreme Court held, had a right to lead cruel anti-gay protests at soldiers’
funerals. It was a great day for freedom when America stopped fearing Senator
Joe McCarthy, and it will be just as great when America stops fearing AIM and
the other enforcers of orthodoxy on the right and the left.