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The Case for Allowing Advocacy of Violence on Campus

photograph of University of Pennsylvania courtyard

Last week M. Elizabeth Magill, the University of Pennsylvania’s president, was forced to resign after she gave testimony before Congress concerning her university’s response to pro-Palestinian demonstrations on its campus. The controversy over her testimony has focused upon the following exchange with Republican Representative Elise Stefanik:

Stefanik: “Does calling for the genocide of Jews violate Penn’s rules or code of conduct, yes or no?”

Magill: “If the speech turns into conduct, it can be harassment.”

Stefanik: “Calling for the genocide of Jews, does that constitute bullying or harassment?”

Magill: “If it is directed and severe, pervasive, it is harassment.”

Stefanik: “So the answer is yes.”

Magill: “It is a context-dependent decision, congresswoman.”

Stefanik: “That’s your testimony today? Calling for the genocide of Jews is depending upon the context?”

After news broke that Magill had resigned, Stefanik, referring to Magill’s co-testifiers from Harvard and MIT, said in a statement: “One down. Two to go.”

As others have pointed out, what is astonishing about this episode is that Magill’s response, which (bizarrely) even some prominent law professors have criticized, was a straightforward recital of First Amendment law as applied to campus speech. The First Amendment protects from censorship advocacy of violence that falls short of verbal harassment or incitement — the latter defined as conduct intended and objectively likely to cause imminent violence. In line with this principle, Magill’s sensible position is that there are likely some situations where even advocacy of genocide does not rise to the level of harassment or incitement. But critics of Magill’s position would have us believe that the scope of permissible speech — that is, speech not subject to institutional sanction — on our elite campuses should not be as broad as it is in any public park, any periodical, or any public library in America. In this column, I will try to provide a rationale for Magill’s position.

The first thing to observe is that free speech is not only a legal, but also an ethical issue that extends far beyond the purview of First Amendment law. That’s because free speech concerns arise in a variety of contexts, from the family to the workplace — indeed, wherever one person or group has the power to sanction others for their speech. It is not my position that in all of these contexts, the scope of permissible speech should be the same. The value of free speech must be weighed against other values, and in different contexts, the results of that weighing exercise may vary. My claim is that in academic institutions, the value of free speech is unusually weighty, and this justifies maintaining a very strong presumption, in this particular context, in favor of not sanctioning speech. So, while the First Amendment is only directly implicated where the government seeks to use the coercive power of the state to censor or otherwise restrict speech, the First Amendment may serve as a useful model for how private universities like the University of Pennsylvania should handle speech.

Academic institutions are where knowledge is generated and transmitted. To do this well requires an open exchange of ideas in which participants can rigorously test arguments and evidence. Any institutional limits upon this exchange inevitably hinder this testing process because they entail that certain ideas are simply beyond the exchange’s scope. While some limits are nevertheless justifiable for the sake of encouraging maximum participation and preventing violence or other serious harm to persons, academic institutions should not draw the line at mere advocacy of violence or crime for a couple of reasons.

First, it would deprive faculty and students of the opportunity to openly and freely examine ideas that might, like or not, have great currency in the wider society. This is particularly lamentable given that a college campus is a relatively safe and civil environment, one much more conducive to productive conversation about difficult topics than others in which students will find themselves after graduation. It is also, at least ideally, an environment relatively free from the kind of political pressures that could make open and free conversation difficult for faculty. For this reason, if a point of view that advocates violence or crime is without merit, the best arguments against it may be generated at a university. If it has merit — I do not presume a priori that any position advocating any kind of violence or crime is without merit — it is likewise at a university that the best arguments for the position may be uncovered.

In other words, it makes no difference that pro-violence ideas may be intellectually indefensible, or that some might wish them consigned to the dustbin of history. Academic institutions perform a public service simply by publicly demonstrating that fact. Moreover, Hannah Arendt said that in every generation, civilization is invaded by barbarians — we call them children. Her point was that no generation springs into existence armed with the truths established by its predecessors; each must relearn the hard-won lessons of the past, reflecting upon and deciding for itself what is good and bad, true and untrue. To shut down discussion of ideas we have deemed to be without merit is to tell the next generation of students that we have made up their minds for them. There could be nothing less consistent with the spirit of liberal education, with what Immanuel Kant called Enlightenment, than that.

It may be objected that advocacy of violence per se, in any context, frightens or even traumatizes would-be targets of violence, whether student, faculty, or staff, and this justifies censoring it. But my position is not that advocacy of violence is permissible at any time and place, or in any manner. There are better and worse ways for an institution to handle speech that is capable of harm. My point is simply that the solution cannot be to simply restrict any discussion of ideas supportive of violence, no matter how it is conducted. I have previously made the point that we — that is, free speech proponents, including the liberal Supreme Court of the 1960s that was responsible for so many seminal free speech decisions — do not support free speech because we think speech is harmless. By arguing for the central importance of free speech as a value, we implicitly recognize speech’s power to do evil as well as good. Our position must be that we support free speech despite the harm speech can cause, although we can and should take steps to minimize that harm.

This discussion has, so far, been somewhat abstract. Let me close by considering a concrete hypothetical that illustrates the gulf between my view and Stefanik’s. Suppose that a substantial portion of Americans come to support the involuntary, physical removal of Jews from Palestine, effectively an “ethnic cleansing.” Pundits and politicians start advocating for this position openly. On my view, one role of universities in that scenario would be to serve as a forum for discussion of this idea. Proponents of that view should be invited on campus and debated. Students and faculty, including those sympathetic to the idea, should discuss it at length. The hope would be that by exposing it to the kind of scrutiny that universities can uniquely provide, the idea would be discredited all the more swiftly and comprehensively. There is no guarantee that this would happen, of course. On the other hand, those who hold to the view that advocacy of violence has no place on campuses must insist that, in this world, universities and colleges should shun proponents of the view, insulating their students from exposure to the treacherous currents of thought coursing through the wider society. This, I submit, would be a mistake.

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Is It Always Wrong to Blame the Victim?

photograph of burning match near a bunch of unlit matches

In July 2010, Terry Jones, the pastor of a small church in Florida, announced he would burn 200 Qurans on the ninth anniversary of the 9/11 attacks — an event he dubbed “International Burn the Quran Day.” The pastor blamed the Quran for the attacks and other terrorist violence. When September came, Jones was temporarily dissuaded from acting through the personal intervention of religious leaders and government officials, including a phone call from Defense Secretary Robert Gates. Nevertheless, in March 2011, Jones livestreamed a “trial” of the holy book, complete with Arabic subtitles. After a brief recitation of the “charges,” the pastor condemned a copy of the Quran to be torched in a portable fire pit. A few weeks later an Afghan mob, whipped into a frenzy by sermons and speeches denouncing the act, attacked a U.N. compound, killing seven U.N. employees. Subsequent riots left nine dead and more than ninety injured. Days later, two U.S. soldiers were shot and killed by an Afghan policeman in an attack that was later attributed to his anger over the burning.

Condemnation of Jones was nearly universal. A frequent theme in the chorus of opprobrium was the argument that Jones was responsible for putting American lives at risk overseas.

Prior to the burning, President Obama said that “I just want [Jones] to understand that this stunt that he is talking about pulling could greatly endanger our young men and women in uniform who are in Iraq, who are in Afghanistan.” After the riots, a Pentagon spokesman said the violence showed that “irresponsible words and actions do have consequences.” Some commentators also blamed the U.S. media for “recklessly” amplifying the story. Only a few, mostly conservative writers focused attention on the “eternal flame of Muslim outrage” that made Quran-burning such an explosive act.

This incident came to mind as I read Giles Howdle’s recent column on the assassination attempt against Salman Rushdie. Howdle argues that Rushdie is not responsible for any of the violence provoked by his novel, The Satanic Verses — including, but not limited to, violence directed at his own person.

To support his claim, Howdle points out that Rushdie’s actions, while part of a causal chain that predictably produced violence, were themselves non-violent, and that Rushdie never encouraged or desired violence.

According to Howdle, blaming Rushdie is akin to blaming the victim of sexual assault for having worn “provocative” clothing. Moreover, Howdle contends that placing responsibility for violence on Rushdie instead of the Muslim perpetrators treats the latter as “lacking full moral agency.”

These arguments are compelling, but I wonder if they derive some of their plausibility from the fact that Rushdie is an immensely sympathetic character: a brilliant writer and man of the left, persecuted for nothing more than a witty novel. Jones is a much less appealing figure; and yet, in its essentials, his act and Rushdie’s seem comparable. Jones’ act was non-violent, albeit part of a causal chain that predictably caused violence. While it is debatable whether Jones set out to incite violence, assume arguendo that his act expressed his sincerely held, if deeply bigoted beliefs, and that he merely foresaw the possibility of violence resulting from his act rather than wanting or intending it to occur. Doubtless, Rushdie’s novel is more valuable than Jones’ political stunt; but Howdle’s case does not turn on the value, aesthetic or otherwise, of Rushdie’s work.

If your intuitions about these cases still differ, I suggest it has something to do with your sympathy for Rushdie and aversion to Jones, rather than any consistent commitment to the proposition that those who, through their non-violent acts, provoke others to commit acts of violence as a foreseen or foreseeable but unwanted side effect are not responsible for that outcome.

Consider this thought experiment. Smith is walking briskly to a job interview for which he is already five minutes late. Suddenly, out of an alley appears a man holding a woman at gunpoint, blocking Smith’s path. The man warns Smith that if he takes one step closer, he will shoot the woman. Unfortunately, Smith has to move in the man’s direction if he wants to make his interview. Resolving to set up a college fund for any children the woman might have, Smith takes a step toward the man, who promptly shoots the woman. Here, Smith’s act is non-violent, though it has predictably violent consequences given the man’s credible threat. In addition, Smith does not want any misfortune to befall the victim: if, say, the man’s gun jammed and the woman were able to escape his clutches, Smith would be delighted. Yet surely he bears some responsibility for her death, and in the scenario in which the gun jams, he is still responsible for risking her life. It might be argued that by taking the step, Smith somehow encouraged or incited the man. But if simply doing what will predictably trigger the execution of another person’s threat constitutes incitement or encouragement, then writing, publishing, or not recalling a book in the face of credible threats that these acts will cause violence is also encouragement or incitement.

My point is not that the Smith case is analogous in every respect to the Rushdie case.

Rather, my argument is that we are sometimes partially responsible for other people’s violent acts and the harm that results, even if we don’t encourage or welcome them in any way.

If that’s true, then any argument for Rushdie’s lack of responsibility for the violence that occurred as the result of his novel’s publication needs to be more nuanced. It is not sufficient that Rushdie’s own acts were non-violent and that he did not encourage or incite violence or want it to occur.

What we need, in other words, is a more sophisticated theory of when we are morally responsible for causing others to harm third parties — notably including, but not limited to, situations in which we trigger the execution of another person’s credible threat to harm another. The range of cases is immense.

For example, when a government decides to abide by its policy never to pay a ransom in the face of a credible threat to a hostage’s life, and that decision leads to the hostage’s death, that is not generally considered an outcome for which the government is blameworthy. On the other hand, the media has sometimes been blamed for causing “copycat” acts of violence by publicizing the names or manifestos of mass shooters.

What distinguishes these cases? By carefully examining the differences between cases like these, we can start to build a theory that hopefully better explains our moral intuitions.

There is, of course, an obvious distinction between the Smith and Jones cases on the one hand, and Rushdie’s case on the other: Rushdie himself was a victim. Even if we grant that we are sometimes responsible for harm that others cause third parties, that is not the same as blaming the victim. The question, then, is whether we are ever responsible for self-harm that occurs as a foreseen or foreseeable but unwanted result of our actions’ influence on others.

There are actually two things we might mean when we say that we are “responsible” for this kind of self-harm. The first is that by knowingly running the risk of provoking harm to ourselves, we tacitly consent to the risk, thereby waiving our right against the perpetrator that she not harm us: the “he asked for it” defense. The second interpretation is that by knowingly running the risk of provoking harm to ourselves, we are blameworthy for the perpetrator’s acts and resulting self-harm. Space constraints prevent me from analyzing these interpretations in depth here, so a few general points must suffice.

As with responsibility for provoking others to harm third parties, it seems unlikely that we are either never or always responsible for self-harm in either of these senses.

The idea of holding sexual assault victims responsible for their perpetrators’ actions is morally repugnant, but this may be best explained in light of our attitudes and expectations related to sexual violence, rather than some general moral principle barring liability for self-harm in all cases. Again, it seems that we need a more nuanced theory than “the victim is never responsible.”

Despite the foregoing, I am confident that blaming Rushdie for the violence his novel provoked is morally perverse. However, as I hope to have shown, we need better arguments for why this is so.

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Kyle Rittenhouse and the Legal/Moral Limits of Self-Defense

photograph of protesters carrying automatic rifles

On August 25th, Kyle Rittenhouse carried a firearm into the protests in Kenosha, WI. He killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and seriously injured Gaige Grosskreutz, 26.

Rittenhouse is being charged with one count of first-degree intentional homicide; one count of first-degree reckless homicide; one count of attempted first-degree intentional homicide; and two counts of first-degree reckless endangerment. The Kenosha police chief called the shootings a senseless act of violence on protesters: “We’ve had two people lose their lives senselessly while peacefully protesting,” Chief Miskinis said.

His lawyers, on the other hand, claim that he was “protecting his community,” acting in self-defense: “before Rittenhouse fired his gun, he was ‘accosted,’ ‘verbally threatened and taunted’ by ‘rioters’ while he guarded a mechanic’s shop alongside a group of armed men.” By claiming that Rittenhouse was acting in self-defense the legal team invokes one of the most intuitive exceptions to the prohibition on inflicting harm on another person. But, there are limits, both morally and legally.

Morally speaking, the views on the appropriate use of self-defense are more varied than the range permitted by law. This is of necessity – to allow broad ranges of interpretation in matters that include inflicting harm on one another isn’t conducive to a well-functioning legal system. In ethical theories, the question of self-defense involves slightly different questions than in the realm of law. Legally, you have some right to defend your person — though the conditions differ by jurisdiction — and this presumption already diverges from one moral position: pacifists. Pacifists defend the position that harming another person is never justified. There are pacifists that emphasize that this lack of justification arises because of the alternatives to harm that are ever-present, and this concern does show up in many self-defense statutes. If someone can avoid using force in order to defend themselves, then this can undermine the justification for the use of force (though in WI, there isn’t a “duty to retreat” as there is in other states).

Other pacifists emphasize that the same principle that makes it inappropriate for your assailant to harm you also holds in the case of your harming them. And it gets more complicated because most theorists agree that not all cases of harming someone in order to avoid them harming you are justified. There are limits to when defensive force is permissible even for non-pacifists. Self-defense doesn’t always work as a defense, so to speak.

Imagine if I put myself in the position where I needed to defend myself in the first place. In such circumstances, the role of the “attacker” becomes more murky, and the sense in which I need to defend myself becomes harder to explain. This complicates matters for a number of ethicists. In such a case, if some action of mine could de-escalate the situation or prevent the threat to my safety, then I am not justified in using force to defend myself. Underlying these cases is the idea that we can avoid circumstances where inflicting harm, or at the very least inflicting lethal harm, on assailants. If generalizable, this would undermine the force of the self-defense arguments.

For example: Imagine that I am robbing a house with a firearm, and the homeowner pulls a gun on me, shouting “Make another move and I’ll shoot!” I believe the homeowner to be a little trigger-happy and fear for my life. I shoot the homeowner out of this fear, and thus in self-defense. Was I acting permissibly in shooting the homeowner? According to moral theorists, self-defense doesn’t clearly apply here because the home’s defenders were responding to my use of force. The important feature, arguably, is that I could avoid defending myself by ceasing my aggressive, law-breaking conduct that initiated the exchange. When I threatened the homeowner with lethal force, she was using appropriate force in response. Morally speaking, if I stepped down and ceased posing a threat, the homeowner loses her moral justification for threatening harm to me.

Here the law and these moral theories arrive at similar conclusions (with the Castle Doctrine complicating matters), but with important differences. Legally speaking, breaking a law at the time of defending your safety undermines a claim to self-defense, but not entirely. However, it isn’t purely the lawbreaking that changes the morality of the situation for all ethicists. In this idealized scenario, the threat to my life exists because of my threat to the homeowner. If I stop my threat, I do not need to harm anyone in self-defense.

According to Wisconsin’s self-defense law, people are permitted to “use force which is intended or likely to cause death or great bodily harm (if they) reasonably believe that such force is necessary to prevent imminent death or great bodily harm to (themselves).” The key here is what the defendant reasonably believes. If the defendant’s lawyers can establish that he had a reasonable belief that he needed to use the force he did to prevent imminent death, his self-defense claim may stand. In Wisconsin, there isn’t a duty to retreat before using force. As such, a great deal rests on whether the jury judges that Rittenhouse had a reasonable belief that his use of lethal force was necessary to preserve his life. The jury’s judgment will depend on a variety of interpretative aspects, as none of the defendant’s victims seem to, in fact, be directing lethal force at him according to witnesses and video, and only one was armed at all. But there is often a distance between what is true and what someone reasonably believes is true.

Eric Zorn, news and politics correspondent for the Chicago Tribune, highlights elements of the scenario from both the legal and moral discussion above: “Did the teen willingly put himself in that fraught milieu and illegally, allegedly, risk a horrific escalation of that danger by carrying a gun on the scene? Yes.” Rittenhouse chose to put himself into a potentially lethal situation. In fact, that the situation was dangerous is his reason for being there. For some theorists, this makes a difference in how morally justified he is in using force against his assailants. He could have avoided the risk to his safety and avoided inflicting harm, similar to the armed burglar example.

Zorn also notes: “What about the context, though? The confrontational, high-adrenaline interactions that led up to the tragic deaths. The night air punctuated by gunshots. Danger all around.” From a legal perspective, and also according to some moral theorists, the relevant context is more narrow in scope. It is the setting in which Rittenhouse killed two people and injured another. Did he reasonably feel his life was threatened then? And was lethal force his reasonable route of defense?

Rittenhouse’s lawyers say yes: “In fear for his life and concerned the crowd would either continue to shoot at him or even use his own weapon against him,” the lawyer’s statement says, “Kyle had no choice but to fire multiple rounds towards his immediate attackers.”

But there are further moral and legal issues that the Rittenhouse case represents.

Aside from the question of whether there was a reasonable belief in a lethal threat to his life, Rittenhouse faces further legal scrutiny in his carrying of a firearm illegally. Further, his behavior exists in a context of a culture that is praising violent responses to protests of police violence, and in this case, inciting violence in response to them.

Rittenhouse allegedly did a lot of illegal things. The 17-year-old reports being motivated by a call to protect people and businesses in Kenosha, and arrived with a gun at an auto mechanic’s on August 25th. His lawyers claim that the 17-year-old’s “intent was not to incite violence, but simply to deter property damage and use his training to provide first aid to injured community members.” The lawyers also report: “Rittenhouse and others stood guard at a mechanic’s shop near the car depot, even after the curfew was in effect.” Unfortunately, Rittenhouse’s chosen method of “deterring property damage” was standing guard with an assault-style rifle he was not legally permitted to possess in Wisconsin, or conceal carry in his home state of Illinois.

Rittenhouse is facing misdemeanor charges for his illegal engagement with the assault-style rifle. Meanwhile, the calls for armed response against the protests in Kenosha have come under scrutiny. Facebook chief executive Mark Zuckerberg said the “Armed Citizens to Protect our Lives and Property” event, hosted by the Kenosha Guard on Tuesday night encouraging armed people to go to Kenosha, was in violation of policies and should have been removed. The direct calls for armed citizens to go to Kenosha were seen as inciting violence, and thus inappropriate on social media. We see their impact in Rittenhouse’s behavior, and the deaths that the calls result in.

In response to these protests, besides directing violence to the protestors themselves, there has been an outpouring of praise towards the people committing the acts of violence. For example, Rep. Thomas Massie (R-Ky.) praised Rittenhouse’s “incredible restraint” at not emptying his magazine into the crowd. And though he also admitted to not being as aware of the circumstance of the murder of Jacob Blake as the case against Rittenhouse, despite claiming: “As a 17-year-old, he was legally entitled to have that firearm in his possession. This is 100% self-defense.” Likewise, DeAnna Lorraine, a Republican congressional candidate, tweeted: “We need more young people like Kyle Rittenhouse and less like Greta Thunberg.” And even President Trump praised Rittenhouse in a tweet: “The only way you will stop the violence in the high crime Democrat run cities is through strength!”

While praise and comparisons to heroes might not rise to the level of incitement — it does not directly encourage another person to commit a crime — it is still dangerous. So, on the other side of the incitement that drove Rittenhouse, there is the encouragement and positive reinforcement that leads to think pieces about an oncoming Civil War.

When the praise heaped onto a vigilante who acted in response to incitement comes from so many sources, the positive reinforcement becomes dangerous in itself. It doesn’t constitute incitement, but continues to divide cultural battle lines where institutional systems that promote violence are paired individual citizens suppressing voices protesting those systems. This encouragement, the incitement, and the people who act on it are a unified voice against change and institutional reform.

This praise is not for someone acting in self-defense. It is for acts of aggression against people rising up against violence and murder. The mixed messaging regarding the case of Kyle Rittenhouse may complicate the case for self-defense. Is he a brave patriot, fighting on the side of law, justice, and the American way, or a scared innocent simply trying to protect himself?