Latest update: December 30th, 2013
A New York Daily News reporter wearing a kippah, Reuven Blau, who had pre-registered and received confirmation, was barred from entering the event, even though other members of the press were present.
According to someone who claimed to be in line waiting to be admitted, SJP people allowed in members of the public who were not on any pre-registration list. Yonah Fredman wrote in a talkback to an Algemeiner article that he believed he was not admitted because he was speaking against the BDS movement while waiting in line.
LEGAL ISSUES First, because Brooklyn College is a public university and because the political science department was an official co-sponsor and co-endorser of the event, as Prof. Alan Dershowitz has pointed out, the constitutionally protected freedom of speech is involved. The constitution only protects speakers from government censorship, not private censorship, but, as Dershowitz put it, “The sword of co-sponsorship may have become a shield to protect the First Amendment rights of the students who were prevented from handing out anti-BDS leaflets and asking anti-BDS questions.”
Jay Sekulow, the head of the American Center for Law and Justice and one of the leading “viewpoint discrimination” scholars told The Jewish Press, “to eject students merely because they had materials that opposed the point of view of the speakers – even if the students were distributing them – is classic viewpoint discrimination and is prohibited by the U.S. Constitution.”
Sekulow went further, “even if the students were understood to be potential troublemakers, the perception of potential disruption is insufficient grounds for ejection, there has to be actual disruption or the students’ removal is unconstitutional.”
Viewpoint discrimination is exactly as it sounds: when only one point of view of a particular subject is allowed to be aired and the other side is prevented from speaking. The rule is that governments must make and enforce rules that are “viewpoint neutral.”
The New York Civil Liberties Union is frequently a litigant in viewpoint discrimination cases, but they did not return a call placed by The Jewish Press seeking comment on the potentially unconstitutional ejection of Jewish pro-Israel students from the BDS event.
The day before the BDS event took place, the NYCLU sent a letter denouncing the New York City Council member who threatened the “odious” event might harm public funding for the school. Executive Director Donna Lieberman and Legal Director Arthur Eisenberg called Fidler’s statement “a stunningly impoverished vision of academic principles,” pointing out that the “First Amendment, embracing principles of free speech and academic freedom, assumes its most critical role when individuals seek to engage in provocative or disturbing speech.”
If a full investigation is conducted which examines all the evidence that can be gathered – and there should be much – and if the Expelled Four were removed not because they caused an actual disturbance but because the SJP organizers did not want them present because of their viewpoints – or because they feared the students might be disruptive and not because they were disruptive – then a clear constitutional violation has taken place and serious consequences should follow.
And beyond the constitutional claim, the Brooklyn College administration repeatedly justified support for the BDS event by invoking the moral high ground of “academic freedom,” and “opportunity for questions and debate”; it committed an abuse of authority by failing to ensure there was just such opportunity for robust debate. Finally, the presence in the room of school administrators and faculty who stood by and allowed students to be removed from a public event for “vocal and disruptive” behavior that either did not happen or was so slight that a sensitive recording device did not pick it up and most people present were not aware of it, is shameful.
Trust in this academic institution is at a low ebb, making public the results of the investigation could go far to rebuild that trust.
About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools.
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