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>> Tom Church: This is the libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined as always by the libertarian professor Richard Epstein. Here at Hoover, Richard is the Peter and Kirsten Bedford senior fellow. He's also the Lawrence A Tisch professor of law at NYU, and he's a senior lecturer at the University of Chicago.
Richard, there are three universities I just listed off there, conspicuously missing from the university presidents who were hauled in front of Congress yesterday. Presidents of MIT, Harvard, UPenn, others were summoned in front of Congress and grilled about antisemitism on their campuses and various pro Palestinian rallies taking place, disrupting classes and generally making Jewish students feel unsafe.
I'd love to know Richard, I'm not sure if you saw these clips of Congresswoman Stefanik asking these presidents a very basic question. I'll ask it to you, and I'd love to get your answer. And this is the question that was asked of each of them over and over. Does calling for the genocide of jews violate the code of conduct or rules regarding bullying or harassment at your university? Yes or no? And I'd love to get your answer to that, Richard.
>> Richard Epstein: I'll give a yes answer to that question. >> Tom Church: You would just stop there, yes? >> Richard Epstein: Well, because, I mean, I could say yes and why? But you just asked for the yes no question. But look, I mean, the most important thing to do is to understand how this kind of word salad game got played by the president. What they said in effect, is that this would only count as a form of anti-semitic hate speech that is regular by cold.
If you simply went up to somebody in their face and said, I want to kill you because I believe in the genocide of Jews. But their general view is if it's made publicly to the entire world, that particular statement, having no particular target, is just another form of freedom of expression that we have to deal with. What's wrong with that is the very thing they talk about. They said, you have to put all this in context. Well, they kind of gave you the view that context makes the speech better.
There is also another view of this subject, which is the context makes it only worse. This is done at a time when there are all sorts of demonstrations that are taking place, bullhorns are being used. Students find themselves physically threatened. Teachers in their classes start to call them one kind of name or another. Everybody sort of hides in one way. And so you see all this particular context.
What you know is there's a kind of muscle behind all this stuff, which makes it much more deadly than the words taken by themselves in isolation, would deal with, this is not some kind of academic seminar in which you're debating as often as done today. Is the creation of the state of Israel legitimate, given the Palestine mandate and everything else that happened in 1947? These are immediate and direct threats. And let me just give you a tort example, and I think it kind of helps this.
I always think private law things do. There's a 1952 case called Silsna call, and there's a guy who's sitting negotiating with a union. And essentially what happened was that the speech came to him directly, which is fine. They didn't threaten him with anything, but they said, you better be aware of what's going to happen to you down the road. And so this is not a technical assault. That is an offer of force against somebody who is within arm's length.
But nonetheless, they say this creation of a sort of intentional creation of emotional distress and anxiety is nonetheless actionable. And that's what's happening here. The speech may not be directed at a single person, but it is so pervasive, so obnoxious, so deadly in its implications, that everybody who hears this to say, well, they could be coming after me if they're willing to talk like.
And then what you do is you start looking on campus and see whether or not there's any action that's been taken by the administration to make sure that they even enforce their own rules about various kinds of demonstrations. And it turns out it's not the case. If you believe in the Hamas situation, you march on campus whether or not you get yourself a permit. If you're not supposed to use bullhorns, you'll use bullhorns.
And if you're not supposed to shout out at the top of your lungs, you'll shout at the top of your lungs. So what's happened is there is now very concrete evidence on these campuses that they're not willing to, in fact, enforce their own rules based on the time, place and manner of the speech. And given that lax enforcement, it only reinforces the impressment that they're not gonna do anything to stop anything else.
At this particular point, it looks about the only thing that these presidents are prepared to stop is the occupation of school building by these alien groups, at which point they may call the police. And obviously, that's more dangerous than what's happening here, but it doesn't follow from that. What's going on in these particular cases is a walk in the park. It's extremely dangerous.
And as there is less and less resistance from the central administration, there will be more and more liberties taken by these groups. Anybody who listened to the kind of pathetic responses that were given, particularly by Claudine Day and Liz McGill, neither of whom should be president of any university, would have to come away from the fact that they have no judgment whatsoever. They are heads of great institutions.
That they cannot bring themselves to say that those people who are in favor of beheading a disadvantageous, embowing women as part of a jaunt in the park, are doing something that's morally wrong. God protect us. It's hard to imagine any form of moral relativism that is worse than that. And there is nothing whatsoever about being the president of a university or a spokesman of a university that forces you to be silent on these issues.
You can recall when there was this trial with respect to George Floyd, every university went head over heels and denounced every kind of systematic American racism with respect to the conviction or the events that led to the conviction of the various policemen. And you know why if they can speak out on that case, which is much more enigmatic and much less important than this case, do they have to remain silent in the face of speech waves that only promise hatred and perhaps more violence?
It's just absolutely mind boggling to me that they hunker into a corner. Their performances were shameful. As Mister Stefanik said, I think you all ought to resign. That she may not have said that about the MIT woman, but certainly with respect to what happened at Penn and with respect to Harvard. And she's right about both of these cases, and general hopes that the boards of trustees will do something about it.
But what is so depressing about all of this is people are supposed to have good business. Then essentially they're turning into cowards as well. And so if you find nobody who's prepared to stand up to this, everybody who's prepared to say, well, you got to look at both sides of this question. One of the points about a system of moral beliefs is it's not a system of total relativism.
And you can say when there are two sides to a dispute, one of you is wrong and the other has not done those kinds of things. So unless they can start the show, jewish students marching around campus, banging drums, threatening all their leaders, they essentially just don't understand that parity is not what you need in this case. What you have to do is to recognize that one side on these fundamental issues is wrong and the other side is nothing, and act accordingly.
This is not saying what you have to believe about the long term history in the Middle east. Nobody would want the university presidents to talk about, quote unquote, the desirability of a two state solution or how many settlements should be occupied, Jews or Arabs in the West bank. All of that stuff can be postponed to another day. But the current situation, the immediate threats and the justification of ghastly and humane acts by these presidents indicate that their moral credence.
And they really do not be president of any major university. And it's a sad sign that people of this utter mediocrity have been selected to lead elite institutions. And if they're bad on this stuff, chances are they're not good on anything else either.
>> Tom Church: Richard, I think it's been pointed out by everyone in the last day that if Congresswoman Stefanik had asked the same question, but substituted Jews for any other minority or an oppressed group, the answer would have been a resounding yes. It's against code of conduct, and instead, we get context. However, one question I do want to bring up with you is, we're talking about some speech issues. There is free speech, and then there is code of conduct.
Universities have more latitude to say, this is against our code of conduct, or this is bullying, this is harassment, we can take punitive action. How is it that it's Congress's business under, I don't know, presumably the first amendment to be involved in this? I mean, is this just outrage for outreach sake? Or, why is Congress looking and summoning these institutions?
>> Richard Epstein: Okay, well, it's always the question with ISIS legislative reform, one of the single most powerful development that we have now is oversight, as opposed to legislation. And oversight is looking with this with review to some kind of long-term regulation of the particular conduct in question. And it may well have to do. Well, perhaps you think this is free speech, but we think it's a rather dangerous thing.
So what we're going to do is examine the ties that we have when we make grants to you. If you're not gonna take steps against this, the federal government will not support the way in which these grants are done. Somebody could even argue that the terms of many of these grants may have been violated. You have to look closely to see whether that's true or false.
And as that's the case right now, some of these institutions should be, in effect, told that either they have to shape up or they have to forego the particular income. But the other point about all of this is these are private institutions. Public institutions are a bit more complex, and private institutions aren't bound by the First Amendment, and they speak up on all sorts of other issues of general popular concern.
And why is this the only case in which they refuse to do something, whereas all sorts of crazy domestic concerns get university situations? So, just to take another issue on which I have rather strong views, there's always a question, what are we gonna do about global warming? And my first thing is make sure that Governor Newsom doesn't make it worse. But do we want universities to take collective positions on global warming?
Well, I think many universities believe that we ought to do that, and I certainly don't believe that. I think people on both sides should be allowed to do it. Institutions take their own rank, but you certainly don't wanna ostracize or limit somebody who believes that the science is unsettled or indeed cuts in the opposite direction. So at this particular point, what happens is it turns out that this is the only area in which we have this stuff.
And as so many people have said, there have been, let us say, just take the number at face value, 15,000 deaths in the Gaza area since the start of the war, horrific number. Compared to the number of dead and the number of exiles that have taken place in Syria over the last 15 years. There are probably several hundred thousand people who have been killed. Millions have been deported or have essentially had to find recipe.
And there's not a single person who's prepared to attack Israel that's even prepared to comment on this stuff or on what's taking place in Yemen. Or essentially about what's happening with respect to the massive infringements on civil liberties that are taken by Iran in its direct actions and through its various proxies. So they just single out this kind of support. And so one of the reasons why you think of this as anti-Semitism is that there is no uniformity of standard that's being applied.
And in fact, the folks who support Hamas are doing this in a kind of weird way. These are the most intolerant people. They're bigoted with respect to all matters of race, all matters of religion, all matters of sexual orientation, and so forth. The people who support them, if they were in those countries, would be killed by them. So it just doesn't make any sense to see the way in which it's going.
So it's not just, in fact, that we see moral impotence on the part of two, maybe even three university presidents. What we do is we see, stemming from this particular war, the most horrendous maneuver, which says that now we really think there is a justification for what Hamas did. And therefore, if they were justified in doing that, anything else that they do can't be as bad as the things they've already done, and so they get a free reign.
This becomes a really dangerous and corrosive attitude to take on these things. And it's not just a legal issue. One of the things to understand about anti-Semitism or any kind of hate speech, for example, the rabid segregationists back in the 50s and 60s. Speech like this may not call for violence explicitly, but it always leads to violence by people who take the messages much too seriously. And therefore, you have to take all the social steps that you can to curb this kind of behavior.
And so even if you cannot legally prohibit some of the speech that's taking place, you certainly can engage in counter-speech in order to indicate that not only does it not represent what we believe, but it's the kind of conduct that we find so offensive that we're clearing it off campus. Indeed, my view at this particular point is, if I were jewish, I would not care if I was banned from staging a small demonstration on campus.
A position which says, we're keeping all demonstrations associated with Gaza off the table and out of the campus, is perfectly justifiable. Given the huge disparate impact that that has at the current situation leaves many Israelis, many Jews, feeling very dangerous and exposed. And they're not just whistling Dixie, and stopping these kinds of demonstrations on the campus, in the classroom, in the newspapers, if need be, is, I think, a palliative measure.
And so they're not bound by the First Amendment as private institutions. And I think what they have to do is to assert some form of moral authority. To put it in another way, the reason we don't want private institutions to behave as if they're government institutions is they have much more knowledge of their own particular situations, and they should be allowed to act on that administratively in their own capacities. It's decentralized authority, not uniform authority.
And if they, in fact, know more than the federal government about what's happening on their campus, they should be allowed to act, even if the universities themselves cannot. >> Tom Church: Richard, I want to ask about the protests going on in campus. My question was, really, when should these protests be shut down? Which is a really weird, chilling thing to think about. I don't like shutting down protests, but I guess we've seen them clearly go too far in some areas.
I guess I want to ask you, how should the, I want to say, pro Palestinian groups be protesting to be effective but not come across as anti-Semitic, not, I guess, go down that route. I do want to point out someone posted a study, I believe this is the Wall Street Journal, that 47% of students who embrace the slogan from the river to the sea could name the river or the sea. >> Richard Epstein: Don't know what it means. >> Tom Church: Right, exactly.
They wanna protest, even if they think that that is not a genocidal chance, and we've talked plenty about that. How should they be protesting? >> Richard Epstein: Well, I mean, they should do, first of all, leave the campus alone. And then what there are very definite rules about a time matter and place restrictions that are in public lands, and that's where most of these protests should be.
Or if they really want to stage a rally, they should rent a hall off campus and gather under those circumstances and do what they will. But I don't think that the university is required to give them a home when the speech is that obnoxious. The other thing I think is that, again, the university may well have a position which says, you behave in this way on campus, you have to be subject to punishment.
And one of the things that was so exasperating about the talk that we heard is they said, well, we don't talk about individual student cases. They weren't asking for individual student cases. They were asking a simple question. Has any single student who's been engaged in these near forcible protests on campus been subject to any disciplinary sanction at any of these universities?
And I think the answer to that question is no. And I think the answer to that question will continue to be no if they continue to hem and haw in this particular fashion. It becomes, I think, absolutely critical to recognize that when people bake local rules, and they do so for political reasons, that compounds the felony, it doesn't excuse it. So the early warning sign on this was when President Gay at Harvard presided over the commencement meeting.
Several Palestinian students rushed up to the podium and started to attack Harvard on the grounds that it supported apartheid and invested in Israeli companies and so forth. At that point, they had to punish. You wanna say that in some other way, fine. Disrupting ceremonies, blocking bridges and all that stuff, it's just not there. And what they did, in effect, is they just sloughed it off and they made excuses.
But what happens is there's a kind of a version today of the broken windows hypothesis that applies to this speech. If you don't stop the little stuff, people are gonna say, well, maybe they won't stop stuff that's a little bit bigger. And so they'll go a bit tougher, and then they'll go tougher, Phil. And unless you stop this stuff at the beginning, you're gonna face what you do now, a genuine tidal wave. And the tidal wave of antisemitism in this country is much more difficult to stop.
In part because we have demonstrable failures on the part of major university president, and on part because the forces who are backing all this stuff are so entrenched, it's not at all clear on what can be done. This has become an existential struggle for the soul of the United States, and it's being pushed, I mean, in a situation where there's no moral equivalence between the two sides. And everything that Hamas has done in terms of speech and behavior has been crude, it's been false.
It's just been one horror story after another. And we're supposed to sit by and get really mad at Mister Netanyahu because of his positions on judicial reform in the state of Israel. This is just not where we need to be at this particular point in time. And that testimony, I hope, will be an alert to the best people in this country. I mean, it may influence the presidential election.
Because if you're Jewish, as I am, and you look around and you see the Democrats, your strong Democratic supporter is Joe Biden, who waffles on a whole variety of substantive issues and subordinate issues. And all of your strong dependents turn out to be evangelical Christians or Trump supporters. I mean, this is one of the really weird inversions that have started to take place.
That it turns out that everything the Democrats believed about civil liberties and about the dangers of red baiting and so forth in the 1950s, they now practice the very things that they condemn 60 years ago. This is not the party of my parents. It's not the party of my youth. This is a party that we don't need at all. And so it's very, very frightening to see this thing happen in the way in which it does. And I'm kind of, to put it mildly, slightly obsessed and appalled.
But I do hope, and seriously hope that Harvard and Penn basically decide to do things again. And if they don't, their board of trustees should resign en masse, and students should not go there. Let me just mention one thing. I have many research assistants. Some of them still come from the major Ivy, some quite brilliant students, including one recently from Penn and another one recently from Yale, whom I'd recommend to anybody.
But there are also students every bit as good come from Grove City's College, Hillsdale, Beaumont, College, and so forth. And I asked them, why did you go to these places? And they were interested, why would I wanna go to Harvard? And now, after this event, you see the point, and this is going to only make things worse. Sensible Jewish students, sensible conservative students, will give that place a wide berth, at which point their selective admissions policies will inbreed this.
I cannot tell you how deadly it is to have these DEI policies, because what DEi policies do is you have a filter now, so that only people on the left wing of American politics could have major university positions, only ones who could teach students. And then they admit students who think the way that they do.
So that what you do is you get yourself universities, which instead of being representative across section of American ideals and ideas, it turns out that 90% of it is far left in the way in which it operates, and everybody there supports it and praises it because they all think exactly the same way. Intellectual diversity cannot survive the kind of political, programmatic stuff that takes place on too many campuses too often today. And this is the simple truth.
Most of the people who work with me, who signed letters with me and so forth, they were all over 70. I wonder why? Because we don't think ourselves as being subject to the retaliation. But time and tide spare no man. And in ten years from now, my guess is that most of us will be out of this particular business and that the tide will continue to work. And so the great American universities will become a hollowed out shell which will be known for its lack of intellectual distinction.
And this has to be stopped now. And the only way it could be stopped is to get rid of the shilly-shallying that we see from eminent university presidents, two of whom, at least, have no business holding their current job. >> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish on defining ideas at hoover.org.
If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church. We'll talk to you next time. [MUSIC] >> Speaker 3: This podcast is a production of the Hoover Institution, where we generate and promote ideas advancing freedom. For more information about our work, to hear more of our podcasts, or view our video content, please visit hoover.org. [MUSIC]