War & Speech E3: A Climate of Repression and Fear

Radhika Sainath, senior staff attorney at Palestine Legal, talks with Jameel Jaffer about the climate for speech supportive of Palestinians, defining discrimination, and the “Palestine Exception” to the First Amendment.

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Transcript

Jameel Jaffer (00:00):
I'm Jameel Jaffer, and this is War & Speech, an exploration of the free speech fallout of the war in Israel and Gaza. This conflict has unleashed a wave of censorship and suppression in the United States, including by government agencies and officials, university administrators, private companies, and cultural institutions. As we record this episode, the University of Southern California has just canceled a graduation speech by this year's valedictorian after pro-Israel groups objected to her social media posts. On the platform formerly known as Twitter, a US senator, Tom Cotton, encouraged drivers to run over pro-Palestinian protesters. It's been a particularly bleak morning for free speech.

(00:44):
On this podcast, I'll be talking to scholars, advocates, and others about whether our system of free speech is failing us and if it is, why that's so. My guest today is Radhika Sainath, senior staff attorney at Palestine Legal, an advocacy group focused on protecting people who defend Palestinian rights. Radhika has been working at Palestine Legal for almost a decade. I should also mention that she represents the plaintiffs in a challenge to Columbia University's decision to suspend two student organizations, Students for Justice in Palestine and Jewish Voices for Peace. I'm not going to ask Radhika about that particular case, but I'll just note that the Knight Institute raised concerns about the suspension of those two organizations in a letter to Columbia's president late last year. Radhika, thanks so much for talking with me.

Radhika Sainath (01:32):
Thanks for having me on.

Jameel Jaffer (01:33):
Radhika, I want to start by asking you about your work. Can you tell me a little bit about Palestine Legal?

Radhika Sainath (01:38):
Sure. We started in 2012 and we are a legal defense for the movement for Palestinian rights in the United States. And to this day, we're here to help anyone who is censored or punished or threatened for speaking out. But what we found that most of the people that came to us, about 80% were either students or professors. And in some ways, this made a lot of sense. Historically, student groups have been on the forefront of social justice causes in this country, and the movement for Palestinian rights is no different. And we are seeing a moment, after October 7th, a record number of inquiries. The repression is like nothing we've ever seen before. In the weeks after October 7th, we were working nonstop. A number of those people that were coming to us were really frightened about what was happening as far as their personal safety as well. So, what we call the Palestine exception to free speech, it's not new, but the personal fear that people felt to their safety for either being maybe potentially Palestinian or could be mistaken for being Palestinian was very palpable.

Jameel Jaffer (02:44):
So, you wrote recently that, "The current climate of censorship suppression and intimidation resembles the aftermath of 9/11." Can I ask you to talk a little more about that comparison and in what ways this period feels similar and in what ways it might be different?

Radhika Sainath (03:01):
I was a union organizer in New York City during 9/11, and a lot of the workers that I was organizing were South Asian, were Muslim. And so, I remember that moment as well. And I think there are obviously differences, but some of the similarities are the FBI inquiries, for example, the harassment of people who could, in this case, be perceived to be Palestinian, regardless of whether you're Palestinian or not, right? There was the Indian dad in Brooklyn who was attacked for wearing a [inaudible 00:03:29], and when he was on the playground with his kid, Sikhs are often conflated or confused for being Muslim or Palestinian. And when we saw that, I think a lot of people were scared as far as what that spelled.

(03:41):
But I think one difference that we're seeing, and we've heard reports from a number of professors about this, how post 9/11, if you were a liberal or a Democrat or working at a liberal institution, which universities obviously are, you could criticize the war on terror and what Bush was doing, and a lot of people did speak out. And I think with Palestine professors who were around and were speaking out at that time or noting how now they're being called in by their administrators, they're being questioned, their syllabi are being reviewed, they're being told, "Don't talk about Palestine or Israel in class without reviewing this with us first," or, "Don't talk about it at all," in some cases.

(04:18):
So, I think there are similarities and differences as well. But I think when I wrote that article, it was really that the scariness and the fear of that moment of what's going to happen to us that people were feeling. And of course, Palestinians have been shot in the street for speaking Arabic. There are a number of bills threatening to deport people or revoke citizenship of Palestinians for speech activity. So, there's similarities as well.

Jameel Jaffer (04:43):
So, I want to go back to something you said a minute ago. You said after 9/11 it was possible, or at least in relative terms, it was possible to criticize the war on terror, whereas there is this granular, intimate policing of speech about Palestine, and that seems true to me, but also, difficult to square with the amount of debate that we now witness about these issues. I was talking to Genevieve Lakier, the First Amendment scholar, about these questions. And we were discussing what seemed to, at least me, as a kind of paradox. There's been this staggering wave of censorship and suppression. But at the same time, debate in the United States about these issues seems more open than it's been in decades. So, I mean, so many ideas that couldn't be expressed or weren't often expressed a year ago are being discussed and debated in the newspapers and on cable TV and on campus. So, there is this kind of what seems to me to be a kind of paradox. I wonder how you think about that.

Radhika Sainath (05:46):
Yeah, I mean, I think there has been a shift, certainly, and even just in the past several weeks where people who are what Israel is doing a genocide were fired. And now, obviously, as the genocide unfolds and the ICJ has come out with a decision calling it a plausible genocide, The New York Times is printing in its pages the word genocide. And so, I think part of the problem is really just the immensity of the harm that's happening. It's really impossible to look away. And I think a lot of people are seeing, maybe for the first time, what's happening there.

(06:23):
I mean, I'm talking a lot about activists and those have been the core people that Palestine Legal has represented over its decade in existence. But in the past couple months, we've just been seeing a record number of inquiries from, I'm just going to call them regular people, people who work at Target, or Starbucks, models, doctors, lawyers, school teachers, you name it. So, I think part of the issue is really that more people are speaking out than ever, that the harm is greater than ever. And so, some of that is leaking through and that's a good thing, but I wouldn't necessarily say that it's a top-down easing of the situation versus a bottom-up surge in speech activity.

Jameel Jaffer (07:05):
So, at the center of this free speech debate about Israel and Palestine is the concept of anti-Semitism. And the question of how that concept should be defined. Palestine Legal was part of a civil rights coalition that wrote to the Department of Education in 2022, urging it not to conflate anti-Semitism on one hand with anti-Zionism or criticism of Israel on the other. Can you talk a little bit about why you sent that letter and what's at stake in that particular debate?

Radhika Sainath (07:35):
Sure, absolutely. So, there is a organized campaign by a number of Israel lobby groups to try to redefine anti-Semitism to include pretty much any and all criticism of Israel. And we think this is a disingenuous attempt to redefine anti-Semitism to stop this growing movement for Palestinian rights on college campuses. And not only would it potentially violate the First Amendment, states should be legitimately be allowed to be criticized. No states should be held above criticism. But that it could also violate anti-discrimination laws as well if enshrined into law. And so, we're seeing this even pre October 7th on a number of different college campuses, where Israel lobby groups have pressured university administrators or DEI offices to use this IRA definition.

(08:22):
And what we found is that students are confused if they want to talk about their own identities, if they want to be able to share their trip back home to the West Bank and that they were stopped at Israeli checkpoints or say shot in the knee, this is one student that we represent. What does that mean? Are they, quote, unquote, singling out the state of Israel for criticism? Because that would be anti-Semitism under this definition. How many states do you need to criticize before you can criticize the state that's occupying you or murdering your relatives? So, there's a lot of alarms, a lot of red flags that come up with this definition. One of its own architects have come out to condemn its misuse. Obviously, real anti-Semitism, which is criticism or hatred of Jews as a people should be stopped and should be investigated. But this sort of redefinition to single out Israel as being above criticism is the problem.

Jameel Jaffer (09:15):
So, one of the strands of this debate has been about political slogans and symbols, especially on campus. This has been especially contentious on university campuses. And some students and faculty, as you know, and some members of Congress too have argued that slogans like, "Free Palestine," and, "From the river to the sea," should be condemned or even suppressed because they're tantamount to calls for genocide. I don't think that's a fair or reasonable interpretation of those slogans in this context, but who should decide a question like this? And I'm wondering whether you can help me think through it, what's the principled way to approach that kind of question? How should a university respond when one group of students' call for liberation or justice is heard by another group of students as a call for genocide?

Radhika Sainath (10:05):
What we're seeing right now is really this sort of knee-jerk reaction to censor and punish and investigate any speech supporting Palestinian rights on campus. And I think we could see this with congressional inquiries last fall, which led to the resignation of a number of Ivy League presidents. But it can be context specific, I think. What do the students mean? You can ask them. But I think bottom line is that if you're at a public university, the First Amendment applies and you cannot censor or punish or crack down on speech based on their viewpoint. And I think with slogans like, "From the river to the sea," Zionists have used it, Netanyahu has used it, pro-Palestinian students have used it as well. And for them, it means that from the river to the sea, i.e. the area which Israel now controls, they would like to see a free and equal democratic state for all of the people.

(10:58):
I think a good comparison might be during the civil rights era, right? People were [inaudible 00:11:04] into segregation. For some people that was a scary thing and it might have meant white people who oppose integration might've found it scary, might've been worried for their children, for their safety to be in integrated environments. We obviously think that would be very problematic, but that at the end of the day, that's just one interpretation. And I think that schools should not engage in knee-jerk reactions to censor and punish speech supporting freedom and equality. It is pretty disingenuous what's happening, right? As you framed it, it might seem like schools, they're confused, what should they do? But they're operating in a context of immense pressure from donors, from lobby groups, and that's leading to this. And I think that administrators know better, but what they are doing is reacting to pressure, rather than a genuine confusion as to what is anti-Semitic speech or speech calling for human rights and equality.

Jameel Jaffer (11:59):
You've discussed the role that anti-Palestinian racism and Islamophobia have played in the suppression of Palestinian advocacy, including the singling out of Palestinian and Arab and Muslim advocates, the perpetuation of racist tropes about terrorism and the dehumanization of the Palestinian people. Is all of that the real driver of censorship and suppression in this context? Is it even productive to frame this as an issue of free speech, or should we be confronting it instead as an issue of racism and discrimination?

Radhika Sainath (12:32):
I'm glad you asked that question. I think it's really both. It is both a free speech issue and an issue of racism and discrimination. It is not just obviously Palestinians or Arabs or people who might be perceived to be Palestinians who are being censored or punished. A lot of our clients and people who come to us have been Jewish or Israeli themselves, and have been pulled in for interrogation, censorship and punished, have been told that things like saying the Nakba is a bad thing and always ethnic cleansing is anti-Semitic. I think things like that are very much speech-based.

(13:07):
Underlying all of this is this fundamental anti-Palestinian racism. And I think a lot of people feel that when they have spoken out on other issues, like condemning the police after George Floyd's murder or supporting black lives, that in liberal context, that kind of speech activity has been welcomed. But when they do the same thing for Palestinian rights, they are being treated differently. And for people who are new to the issue, it has really surprised them and they've been taken aback because they felt like, "Oh, I've spoken out for all these different groups. I just did the same thing. I'm so confused. What's going on?" And I think that's what undergirds this, where for Palestinians, they are being treated differently. Their lives are treated differently.

(13:52):
We represent someone on a case against George Washington University from a couple of years ago where she worked at an office that provided basically trauma support for students. And over the years, they'd been really great about supporting black students, students of color, BIPOC students, Asian students, and they would put out targeted messages on social media to reach different student groups. And when it came to Israel's attacks in Gaza in 2021, they did the same thing for Palestinian students. And the office was effectively shut down because of it. And a lot of the staff were really surprised because they were like, "We just did the same thing for Palestinian students." And I think that that kind of context shows what's really at heart here, where Palestinians are really treated very differently or people who speak out for their cause.

Jameel Jaffer (14:38):
Some conservative groups and some Jewish students have argued that universities have in the past restricted the speech of some in order to ensure that minority groups aren't made to feel uncomfortable or unwelcome or threatened. And what's going on now is pro-Israel Jewish students are demanding the same solicitude and not being granted it by the universities. The universities are refusing to limit speech that these particular students find to be offensive or threatening, and they see a double-standard there. And I wonder what your response is to that.

Radhika Sainath (15:17):
Yeah, I've heard that argument. I think it's inaccurate. You have from the very highest levels of government inquiries into speech activity supporting Palestinian rights under the guises of anti-Semitism, but it's basically thinly-veiled censorship. On some campuses, we have dozens of people being called in for student disciplinary proceedings, for, at most, minor violations of student policies and being suspended, they're losing their scholarships. We're really not seeing anything in this country like on any other issue as comparable as far as the censorship that's going on.

Jameel Jaffer (15:53):
Do you think that the discomfort of, say Palestinian students or pro-Israel students should matter at all in the way that universities adjudicate these disputes about free speech? Is there room to take that into account, or is it really just impossible to cabin? Once you open up the possibility of suppressing speech or limiting speech in order to accommodate somebody's discomfort, then you've essentially given away the whole game. There's nothing left of free speech after that. Do you have a view yourself on that?

Radhika Sainath (16:30):
Yeah. No, I agree with you with the latter. And I think universities make these promises to open inquiry, to debate. Most private universities have pretty robust freedom of expression and free speech policies. And obviously, public universities must comply with the First Amendment. Students presumably come to university to have their ideas challenged, to be exposed to new ideas, and I think that's going to happen on college campuses. But what we're seeing instead is this sort of knee-jerk reaction by universities right now to censor and punish speech supporting Palestinian rights, because some students are discomforted by the idea that Israel is conducting a genocide, or is an apartheid state, or whatever that language may be. And you might disagree with that, and you can walk away if you don't want to hear it, but it doesn't mean that that speech should be altogether censored or punished on a campus.

Jameel Jaffer (17:26):
Radhika, it's been great talking with you. Thanks for making time.

Radhika Sainath (17:29):
Thanks for having me on.

Jameel Jaffer (17:31):
In our next episode of War & Speech, we'll be joined by Will Creeley, legal director at FIRE, the Foundation for Individual Rights and Expression, an organization that champions free speech on university campuses. Views on First is produced by Candice White, with production assistance in editing by Isabelle Adler. Research and fact-checking provided by Anna Wester. The art for our show was designed by Astrid de Silva. Views On First is available on Apple, Spotify, and wherever you get your podcasts. Please subscribe and leave a review, we'd love to know what you think. To learn more about the Knight Institute, visit our website knightcolumbia.org and follow us on social media. I'm Jameel Jaffer. Thanks for listening.