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The streets I used to walk on / Are full of broken glass. Thosewords, ripped from the brand new Rolling Stones album, might well be a metaphor for the shit show going on college campuses when it comes to the Israel-Gaza catastrophe. Whichever way one turns, conflict and chaos seem to be trumping civility and consensus. The marketplace of ideas has become a bazaar of pandemonium. Yes, democracy is messy, but how messy can it become until it ceases to be democratic?

The rise of antisemitism

Things appear to be going from bad to worse: Anti-Defamation League Director Jonathan Greenblatt hasnoted that there has been a 388 percent increase in antisemitism in America since Hamas Oct. 7 surprise attack in Israel that killed more than 1,400. Against that backdrop comes a recentop-ed in the Los Angeles Times,one penned by Dean Erwin Chemerinsky:

I was stunned when students across the country, including mine, immediately celebrated the Hamas terrorist attack in Israel on Oct. 7. Students for Justice in Palestine called the terror attack ahistoric winfor the Palestinian resistance. A Columbia professorcalledthe Hamas massacre awesome and a stunning victory. A Yale professortweeted, Its been such an extraordinary day! while calling Israel a murderous, genocidal settler state. A Chicago art professorposteda note reading, Israelis are pigs. Savages. Very very bad people. Irredeemable excrement . . May they all rot in hell. A UC Davis professortweeted, Zionist journalists . . . have houses with addresses, kids in school, adding they can fear their bosses, but they should fear us more. There are, sadly, countless other examples.

While Chemerinsky is careful to avoid calls for censorship, he justifiably feels compelled to call for the very thing that is certain to fan the flames of conflict: There has been enough silence and enough tolerance of antisemitism on college campuses. I call on my fellow university administrators to speak out and denounce the celebrations of Hamas and the blatant antisemitism that is being voiced.

The rise of repression

Of course, there is more to the free speech story. Enter the ACLUsDavid Cole:

In recent weeks, weve seen a surge in efforts to punish and silence students for their speech. The Anti-Defamation League and The Louis D. Brandeis Center for Human Rights Under Law issued an open letter last week calling on university leaders to investigate pro-Palestinian student groups, alleging their speech constitutes material support for terrorism, punishable under federal and state law, despite no evidence to support such claims. That is why the ACLU sent its ownopen letterto the administrative leaders of each states public college system, reaching over 650 colleges and universities, expressing our strong opposition to any efforts to stifle free speech and association on college campuses. The letter unequivocally urges universities to reject calls to investigate, disband, or penalize pro-Palestinian student groups for exercising their free speech rights.

And thenthis from Aaron Terr over at FIRE:

[S]ome reactions to opinions about the latest escalation of the conflict have gone beyond counter-speech:

Truth in the marketplace of candor

Colleges are struggling to balance campus safety for their students and free speech concerns amid the hostile rhetoric around the Israel-Hamas war. The Hill (Oct. 31)

So it has come down to this: Antisemitism continues, chaotic clashes persist, repression endures, and, yes, counter-speech remains when possible. And yet nobody seems quite fine with it. The much-hailed marketplace of ideas has become less of an Enlightenment mechanism than a college combat zone. In the process, minds close while tempers flare. This raises a question: What if more free speech is not the answer or is not a meaningful antidote to the menacing disturbances so rampant on college campuses? What then?

Let us not speak falsely: Does anyone really believe that free speech and open debate in the conflict that has engulfed college campuses will win over many minds or quell near-riotous clashes? While this is not a call for censorship, it is a call for some realist truth in the marketplace of candor.

Related: Josh Blackman What about critical curricula on antisemitism?

Anti-Semitism is as old as civilization itself. It never vanishes. In every generation, anti-semitism simply manifests in different forms.

Virtually every law school has courses of critical racial studies. Query how much of that curriculum focuses on anti-semitism? Every law school has a DEI department. Query how much of that programming focuses on anti-semitism? I suspect the answer to both questions is very little. Indeed, in 2021, Stanford's DEI Department said thequiet part out loud. They do not focus on anti-semitism as not to diminish discussion of anti-black racism. And, anti-semitism is not as important because Jews can hide behind their white privilege.

Related articles

How the redefinition of antisemitism has functioned as a tactic to undermine Palestine solidarity

The widespread adoption of the IHRA definition of antisemitism and the internalization of its norms has set in motion a simplistic definitional logic for dealing with social problems that has impoverished discussions of racism and prejudice more generally, across Britain and beyond. It has encouraged a focus on words over substance.

Erasing Palestinetells the story of how this has happened, with a focus on internal politics within Britain over the course of the past several years. In order to do so, it tells a much longer story, about the history of antisemitism since the beginning of the twentieth century.

This is also a story about Palestine, a chronicle of the erasure of the violence against the Palestinian people, and a story about free speech, and why it matters to Palestinian freedom.

University campuses in North America and Europe are deeply polarized over the character of the Jewish state and the meaning of the Israeli-Palestinian conflict.

This book reveals the damage that antisemitism does to the identity of Jewish students, staff, and faculty. It is the first book to ask what the impact has been on the fundamental principles the academy relies on for its identity academic freedom, free speech rights, standards for hiring or firing faculty members and administrators, and the ethics of academic conduct and debate.

WhileHate Speech and Academic Freedom details the chilling challenges we face, it also offers policies to use in meeting them, concluding with detailed chapters on how to use the IHRA Definition of Antisemitism.

Hate speech has been a societal problem for many years and has seen a resurgence recently alongside political divisiveness and technologies that ease and accelerate the spread of messages. Methods to protect individuals and groups from hate speech have eluded lawmakers as the call for restrictions or bans on such speech are confronted by claims of First Amendment protection. Problematic speech, the argument goes, should be confronted by more speech rather than by restriction.

Debate over the extent of First Amendment protection is based on two bodies of lawthe practical, precedent determined by the Supreme Court, and the theoretical framework of First Amendment jurisprudence. InHate Speech is Not Free: The Case Against Constitutional Protection,W. Wat Hopkins argues that the prevailing thought that hate is protected by both case law and theory is incorrect.

Within the Supreme Courts established hierarchy of speech protection, hate speech falls to the lowest level, deserving no protection as it does not advance ideas containing social value. Ultimately, the Supreme Courts cases addressing protected and unprotected speech set forth a clear rationale for excommunicating hate speech from First Amendment protection.

An engaging guide to the most important free speech rules, rationales, and debates, including the strongest arguments for and against protecting the most controversial speech, such as hate speech and disinformation.

This concise but comprehensive book engagingly lays out specific answers to myriad topical questions about free speech law, and also general explanations of how and why the law distinguishes between protected and punishable speech.Free Speechprovides the essential background for understanding and contributing to our burgeoning debates about whether to protect speech with various kinds of controversial content, such as hate speech and disinformation: the applicable legal tenets and the strongest arguments for and against them.

The book focuses on modern First Amendment law, explaining the historic factors that propelled its evolution in a more speech-protective direction - in particular, the Civil Rights Movement. It highlights the many cases, involving multiple issues, in which robust speech-protective principles aided advocates of racial justice and other human rights causes. The book also shows how these holdings reflect universal, timeless values, which have been incorporated in many other legal systems, and have inspired countless thinkers and activists alike.

Without oversimplifying the complexities of free speech law, the book's lively question-and-answer format summarizes this law in an understandable, interesting, and memorable fashion. It addresses the issues in a logical sequence, presenting colorful facts and eloquent language from landmark Supreme Court opinions. It will be illuminating to a wide range of readers, from those who know nothing about free speech law, to those who have studied it but seek a well-organized summary of major doctrinal rules, as well as insights into their background, rationales, and interconnections.

The case isNational Rifle Association of America v. Vullo.The issue raised in it is:

Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the governments own hostility to the speakers viewpoint or (b) a perceived general backlash against the speakers advocacy?

Professor Eugene Volokh was the counsel of record on thecert. petition.

The Supreme Court handed down some big First Amendment victories last term. What lies ahead for the Court in the upcoming term? FIRE Chief Counsel Robert Corn-Revere and FIRE General Counsel Ronnie London join the show to discuss important First Amendment cases that will be heard during the Court's 2023-24 session.

Related

The Supreme Courtworked hardina pair of argumentson Tuesday to find a clear constitutional line separating elected officials purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.

Review granted

Vidal v. Elster

OConnor-Ratcliff v. Garnier

Moody v. NetChoice, LLC/NetChoice, LLC v. Paxton/NetChoice, LLC v. Moody

National Rifle Association of America v. Vullo

Pendingpetitions

Brokamp v. James

Sharpe v. Winterville Police Dept.

Winterville Police Department v. Sharpe

Jarrett v. Service Employees International Union Local 503, et al

Porter v. Board of Trustees of North Carolina State University

Alaska v. Alaska State Employees Association

Speech First, Inc. v. Sands

OHandley v. Weber

Tingley v. Ferguson

State action

Lindke v. Freed

Reviewdenied

Stein v. People for the Ethical Treatment of Animals, Inc., et al.

Blankenship v. NBCUniversal, LLC

Center for Medical Progress v. National Abortion Federation

Frese v. Formella

Mazo v. Way

Free speech related

Miller v. USA(pending) (statutory interpretation of 18 U.S.C.1512(c) advocacy, lobbying and protest in connection with congressional proceedings)

Previous FAN

FAN 399:Whats wrong with First Amendment casebooks? Where to begin?

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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Chemerinsky: 'I am a 70-year-old Jewish man, but never in my life ... - Foundation for Individual Rights in Education

(November 9, 2023 / JNS)

U.S. President Joe Biden is caught in a quadfecta of corruption, cognitive decline, a failed agenda and eroding polls. Amid this apparent vacuum, an opportunistic Barack Obama, who used to be more discreet in managing his third term, is re-entering the arena.

Last week, he came out as the overseer of the Biden administrations AI agenda, even as his foundations Democracy Forum was warning Americans about the need for inclusive capitalism and the pathologies of material consumptionall this from a multi-mansioned multimillionaire.

Now, Obama is weighing in on the Gaza war by undercutting his third-term presidential proxy.

Yet just as he seems somewhat clueless about the contradictions of an erstwhile community organizer turned into a hyper-capitalist, consumption-addicted elite, so, too, Obama has little self-awareness about how much of Bidens unpopularity derives from his continuation of Obamas own agendas on the economy, border, crime, race, foreign policy and energy.

His apparent obliviousness continues with his most recent odd assertion that, The occupation and whats happening to Palestinians is [sic] unbearable.

But Obama surely concedes that Gaza has been autonomous and free of Israelis since 2005 and governed by a one man, one vote, once Hamas clique since January 2006.

Obama added that if you want to solve the problem, then you have to take in the whole truth, and you then have to admit nobodys hands are cleanthat all of us are complicit to some degree.

In truth, Obamas blanket accusation is absurd.

Over the last 17 years, an autonomous Hamas has managed to create both a hierarchy of billionaires ensconced in luxury Qatari hotels and the most sophisticated subterranean tunnel city in the worldbut little else except corruption, poverty and violence for all concerned.

Obama again seemed unaware of his own confession when he lectured, nobodys hands are clean and all of us are complicit.

Not quite, Barack.

Those most culpable for the current catastrophe are Obama and his team, who invited in Robert Malley to be their point man on Hamas; cooked up the Shiite crescent misadventure; snubbed the grass-roots Green Movement that sought to overthrow the Iranian theocracy; invited the Russians back into the Middle East after a 40-year hiatus; fled Iraq and fueled the ISIS caliphate; lifted sanctions on Iran, giving it a multibillion-dollar war chest that armed to the teeth Hezbollah and Hamas; estranged the United States from Israel; and created the media echo chamber that empowered the disastrous Iran deal.

The rest was history.

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The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.

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The incredible lightness of Barack Obama - JNS.org

(Photo by Win McNamee/Getty)

In the past six weeks, Trump has filed four motions to dismiss his election interference case in DC, as well as throwing a dozen other miscellaneous motion-shaped wrenches in the works as part of a transparent attempt to get his March 4, 2024 trial date postponed.

Last week the government requested to combine its response to Trumps motion to dismiss on statutory grounds and his motion to dismiss on constitutional grounds into one document to avoid the repetition and cross-referencing that pervades the defendants separate motions. Prosecutors sought leave to exceed the 45-page limit for a single reply brief, promising that the combined document would come in well under the 90 pages to which the Government would be entitled if it filed separate opposition briefs.

Trump opposed the motion, because his lawyers are assholes. Ostensibly, he didnt want to allow prosecutors to game the system by spending 60 pages attacking his (idiotic!) constitutional arguments. Judge Tanya Chutkan granted the governments request, sighing in a minute order that the discussion of each Motion therein shall not exceed 45 pages.

In the event, the governments reply is 79 pages, 15 of which are taken up with the caption and tables of contents and authorities. Because Trumps motions were gobbledygook, and no one needed to spend 90 pages refuting them.

The government first tackles the claim that the indictment must be dismissed because it failed to allege that Trump violated the statutes at issue. In the defendants telling, he had a First Amendment right to try to overturn the election by dint of fake electoral certificates. And anyway, all he did was make words, which cant be a crime because have you people even heard of the FIRST AMENDMENT?

In response, the government points out that Trump was not indicted for spewing lies about rampant election fraud. He was indicted for conspiring to defraud the United States, obstruct an official proceeding, and violate the right to vote and have ones vote counted by substituting fake electoral votes for real ones and stopping Congress certifying the winner of the 2020 election.And the First Amendment protects the right to shout ridiculous lies, but the fact that Im a broke Nigerian prince, send me cash is just words wont save you from a fraud charge.

Trump also made a bizarre argument that he was just lobbying Congress, in keeping with his God-given right to petition the government.

That argument fails because the indictment alleges not lobbying or political advocacy, but instead that the defendant engaged in a multifaceted conspiracy aimed at overturning the results of the presidential election by targeting deceit at the federal government function, the special counsel scoffed in response.

Trumps constitutional arguments come in for similar disdain and clock in at considerably less than 45 pages. In chief, he argued that he cant be arrested because he was already impeached, and uh, you know DOUBLE JEOPARDY.

The Impeachment Clause specifies that the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. But Trump argued that hes not a party convicted, and adopting the obverse assumption, he cannot now be tried in a court of law.

But, as the government notes: impeachment is a civil remedy, and has nothing to do with criminal jeopardy; Trump was impeached for incitement, not conspiring to obstruct Congress, and those things are not the same; Congress and the Justice Department are separate sovereigns, and thus the charges are parallel, not overlapping; and, Trumps own Republican allies said that they were voting against impeachment because they thought they lacked jurisdiction to impeach an ex-president, not based on the validity of the charge.

On top of which, thats not how anyone has ever understood the Impeachment Clause to function, looking back to the days of the Founding Fathers although perhaps if theyd consumed a bucket of paint thinner and spent 1,000 hours mainlining Steve Bannons podcast, theyd have come to a different conclusion.

The special counsel requests that Judge Chutkan designate the double jeopardy claim frivolous, which would block Trump from an immediate interlocutory appeal under DC Circuit precedent.

The defendants wholly meritless double-jeopardy claim should not, therefore, divest this Court of jurisdiction in a manner that risks delaying the trial, the prosecutors concluded.

On the plus side for Trump, he did win a partial victory on his motion to extend discovery subpoena deadlines under Rule 17(c). The original cutoff was tomorrow, November 9, 2023, but Trump asked for an extension to February 9, 2024, just three weeks before the scheduled start of this trial. That was never going to happen, of course. But Judge Chutkan did give him two weeks extra to get his homework done, extending the deadline to November 27.

And thats probably the biggest win hes going to get out of this trial court.

US v. Trump [DDC Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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Prosecutors Mock Trump Attempt To Get Election Case Dismissed ... - Above the Law

When an American Jewish politician is simultaneously complimented by the likes of the progressive J Street and the traditional Orthodox Union, it is time to ask what is his true identity?

This unprecedented favorability phenomenon has occurred with the recent nomination and confirmation of Jack Lew as the new United States ambassador to Israel. Thus, in a press release praising Lews nomination, the anti-settlement J Street said that it was personally thrilled that the President has chosen someone with his combination of skill, experience, and commitment to the US-Israel relationship.

Similarly delighted, Rabbi Menachem Genack, CEO of OU Kosher, commented in an op-ed in this newspaper (November 5), that he found Lew to be a deeply sincere and committed Jew of the highest integrity, character, and intelligence in short, a rare mensch of the highest order. In a region where trust is often in short supply, Lews character will undoubtedly serve as a foundation for building fruitful relationships and fostering understanding.

Despite this favorable support from divergent Jewish organizations, all Republican Party Senators, with two exceptions, voted to reject Lews recent ambassadorial nomination. His Senate vote totals were much worse incidentally than the figure he garnered in 2013, in the confirmation vote for Secretary of Treasury, 71-26.

This time, in the closest vote in Senate history on a US envoy to Israel, the vote to confirm was 53-43. Given the pressures Israel will likely face from Washington, related to the war with Hamas, a more solid showing for the new American envoy would have been more convincing.

Nonetheless, it is wrong to attribute Republican opposition to Lews nomination to ordinary party politics. In the Senate, Israel is blessed with many admirers and supporters. What influenced many of these Republicans who voted to reject Lew was his record in strongly promoting Barack Obamas (2015) nuclear arms deal, JCPOA, Joint Comprehensive Plan Of Action.

Lew, as secretary of treasury, and secretary of state John Kerry were the Obama administrations two main proponents. Since this deal eventually gave Iran $150 billion, Lew as treasury secretary needed to certify the deals financial bona fides.

In addition, Lew pitched the argument that tactically, the deal was doable, that this Iranian despotic state would allow inspections, that it would not hide chemical elements, and that ultimately, in this new era of international goodwill, Iran would agree to not produce a nuclear weapon. Not included in the JCPOA deal was Lews decision to grant Iran a banking license.

SOME QUOTES from Lew about this utopian nuclear future which was, of course, never realized:

The final deal will be built around incredibly robust and intensive inspections This deal will only be finalized if the connective tissue meets a tough standard of intense verification and scrutiny What we are doing is to effectively guarantee that Iran never obtains a nuclear weapon Making sure Iran never gets a nuclear weapon is a national security priority of the highest order.

Fast forward Senate Foreign Relations Committee confirmation hearings in October 2023, found that Lew was still a believer in the value of appeasing Iran in a nuclear deal despite all the subterfuges, lies, and terrorism that the Islamic Republic undertook since the original signing. I believe deeply that an agreement to not have nuclear weapons would be a good thing. But this is not the moment.

Questioning Lews credentials on the Senate floor, Tom Cotton of Arkansas, perhaps Israels most thoughtful supporter in that body, argued, Jack Lew is an Iran sympathizer who has no business being an ambassador. Its bad for the United States. Its bad for Israel to have an Iran sympathizer as an ambassador to that country. He helped Iran evade American sanctions and he lied to Congress about it.

Moreover, opponents of Lews ambassadorial confirmation at the committee hearings, cited his defense of the administrations refusal to use a veto of United Nations Security Council Resolution 2334 directed against Israel for its illegal occupation of parts of Judaea and Samaria. In the past, when such measures were voted on, the United States vetoed them rather than abstained as in the Obama case.

Before Lews confirmation vote, Senator Jim Risch of Idaho, the top Republican on the Senate Foreign Relations Committee, said Lew is the wrong person at the wrong time in the wrong place.

No doubt, Risch was unaware of his prophetic call with the entry of Lews ex-boss, Barack Obama, into the deepening controversy over Gazas next day. While many observers cite Obama as among Israels least supportive Presidents, a grateful Lew claimed, No administration has done more for Israels security than this one.

Just as Lew remains on good terms with the Jewish community, combining the unlikely plaudits of both J Street and the Orthodox Union, he faces a new challenge in Jerusalem over loyalties in the diplomatic arena to either old boss Obama, or current one, President Joe Biden.

Obama wants to be a player in the decision about the Day After for Gaza. Conceptually, however, the two presidents represent different Israel-related outlooks. Obamas orientation comes from the anti-colonial wing of the Harvard Faculty Club. Thus his observation, What Hamas did was horrific and theres no justification for it. And whats also true is that the occupation and whats happening to Palestinians is unbearable.

By contrast, Biden, an old-fashioned Christian Zionist, still tells anecdotes about Golda Meir, and took his children and grandchildren to Dachau concentration camp, instilling in them a respect for Jewish vulnerability.

Ambassador Jack Lew, who are you?

The writer is an emeritus professor of political science at City University of New York.

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Is Ambassador Jack Lew really a friend of Israel? -opinion - The Jerusalem Post

MONTGOMERY, Ala. Flying certain flags on public property would become a criminal offense in Alabama under a newly filed bill by State Sen. Gerald Allen, R-Tuscaloosa.

Among the first bills filed for the 2024 legislative session, Senate Bill 4 would make it a Class C misdemeanor for an individual to place, hoist, or display a flag on public property outside of 11 exceptions, including the United States flag and the Boy Scouts of America flag.

Perhaps one of the most important exceptions to the new law, according to Allen, was the inclusion of the Freedom Flag, a flag created in November of 2001 in remembrance of 9/11.

One of the reasons why we think its important for us to (include) the remembrance Freedom Flag is (that) its a very important part of American history, one that not one of us needs to forget, Allen told Alabama Daily News.

The world doesnt think and believe like we Americans believe; theyre trying their best to destroy us as a country, as a nation, and I just think this is very important for us to make sure that our young people understand what took place on 9/11.

Calling 9/11 a turning point in America, Allen said his hope was that by making the Freedom Flag more commonly flown on public property, younger Alabamians would be reminded of the sacrifices made since the attack on the World Trade Center.

We must be reminded so this sort of thing can be placed in the minds of our citizens and our children, that this is not ever going to happen again, he told ADN.

As to the prospect of criminalizing the act of waiving unapproved flags on public property, Allen said it was not his intention to violate the First Amendment, under which flying flags on public property has been ruled time and time again to be a protected activity.

As far as a protest or someone staying on public property waiving Trump or a Biden sign, thats their First Amendment right, Allen told ADN Tuesday. Weve got the First Amendment issue, and we sure dont want to infringe on constitutional rights.

Allen said he would consult with his legal team to ensure his proposal ultimately does not conflict with the First Amendment. As currently written, however, the bill would criminalize the flying of any unauthorized flags on public property, though would excluderoads, highways, in stadiums, arenas and athletic facilities, however, would be exempt.

Flags permitted to be flown on public property under the bill are as follows:

Similar bills have been filed in other states, including one in Florida that would have restricted the exhibition of flags on government property to the state flag, the U.S. flag, the POW-MIA flag or the firefighter memorial flag. However, that bill ultimately died in the Florida Legislatures Constitutional Rights Subcommittee, and never became law.

Other states have seen more local efforts to restrict what flags can be displayed on public property, including communities in Ohio, New York and Utah, where certain school districts have restricted the display of Pride flags outright.

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New bill to criminalize flying unauthorized flags on public property ... - Alabama Daily News