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**NOVEMBER 10, 2023**

On the Prospect website

The 2023 Elections Are Over. 2024 Will Be Different.

Democrats used to be the party with drop-off voters. That has flipped.
BY DAVID DAYEN

Breaking the Dominion Uniparty in Virginia

Clean Virginia and its opposition to the state's monopoly utility was
a hidden driver of election results. BY LUKE GOLDSTEIN

Israeli Civil and Human Rights Degrade in a Time of War

Many have been arrested, public demonstrations have been banned or
discouraged-even social media postings have been policed. BY UDI OFER
& NOA SATTATH

Kuttner on TAP

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**** Free Speech: Brandeis vs. Brandeis

Does student support for Palestinian rights promote violence at home?

Last week, Brandeis University, where I teach part-time, revoked the
university's recognition of Students for Justice in Palestine. The
letter to the group declared, "Students who choose to engage in conduct
in support of Hamas ... will be considered to be in violation of the
University's student code of conduct."

Brandeis President Ron Liebowitz, facing criticism, sent the Brandeis
community a follow-up letter
,
which explained, "This decision was made because SJP openly supports
Hamas, which the United States has designated as a Foreign Terrorist
Organization, and its call for the violent elimination of Israel and the
Jewish people."

These actions sent me searching for some enlightenment on the subject
from a celebrated champion of free speech, Justice Louis Brandeis, in
whose honor the university, founded in the shadow of the Holocaust and
Ivy League antisemitism, is named.

Brandeis, the first Jew appointed to the U.S. Supreme Court, by
President Wilson in 1916, knew something about antisemitism. He was
confirmed after long delay and fierce debate, after barely winning the
support of the Senate Judiciary Committee, 10-8.

In the famous 1927 free speech case Whitney v. California
, Justice Brandeis
wrote, "To justify suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech is practiced
... [and] reasonable ground to believe that the danger apprehended is
imminent."

For Liebowitz, the connection between SJP's rhetorical support of
Hamas and the U.S. government's defining Hamas as a terrorist
organization added up to the SJP promoting violence on campus. The
circumstances were not unlike those in

**Whitney v. California**.

Charlotte Anita Whitney, a founding member of the Communist Labor Party
of California, was prosecuted for helping to organize a group that
advocated violence. But Brandeis observed that Whitney posed no
immediate threat. "[T]he remedy to be applied is more speech, not
enforced silence. Only an emergency can justify repression."
Brandeis's view, a minority position in 1927, was finally adopted by
the Supreme Court in 1969.

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So, who's right: Brandeis, or Brandeis? The test, it seems to me, is
whether SJP incites violence at home, not whether it espouses an
unpopular defense of violence overseas.

On Thursday, a group of Jewish students at Brown University sent the
student newspaper a letter in solidarity with SJP
.
They wrote, in part:

"[P]eople ask us ... 'Do you recognize that Hamas's attack on Oct. 7
was an act of horrific violence?' To that, we say, unequivocally,
yes."

Excellent. But they also wrote, "'From the river to the sea, Palestine
will be free' is not ... a call to 'throw Jews into the sea
'; instead, it is a call for the
end to the oppression of all Palestinians."

Well, not so excellent. The trouble with such slogans, like Trump's
ambiguous calls for violence, is that they are encoded dog whistles.
Some can read them as a call to end oppression of Palestinians. Others
can cheer them as a call to eliminate the state of Israel.

One thinks of Lewis Carroll in

**Through the Looking-Glass**:

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it
means just what I choose it to mean-neither more nor less."

"The question is," said Alice, "whether you can make words mean so many
different things."

"The question is," said Humpty Dumpty, "which is to be master-that's
all."

The war in Israel and Gaza is about which is to be master. But the war
on American campuses is about words. It's hard to make a persuasive
case that allowing students to defend Palestinians, even Hamas, is
tantamount to promoting violence at home, or that curtailing that right
of speech will reduce the risk of such violence.

When Justice Brandeis famously wrote that the remedy is more speech and
that only an emergency can justify repression, he was referring to
government action. The same standard should apply to college campuses,
especially one named for Louis Brandeis.

~ ROBERT KUTTNER

Follow Robert Kuttner on Twitter

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