In several state legislatures across the country, bills have been introduced that would penalize universities should their faculty members participate in professional organizations that express a political viewpoint by endorsing a boycott. Sheldon Silver, New York State Assembly speaker, has introduced such a bill in Albany. These proposed laws intend to attack academic professional organizations such as the American Studies Association, which recently endorsed the academic boycott of public educational institutions in Israel.
Both opponents and proponents of a boycott of Israeli public educational institutions should unite in condemning these ill-conceived antiboycott laws. A law punishing political speech in an academic setting poses a devastating threat to academic freedom and our constitutional rights. Today, some members of the state legislature are strongly against political speech that is critical of Israel. In years past, state laws punished individuals and organizations that boycotted racially segregated buses in the U.S. South. In the future, boycotts will be organized around other sharply contested social issues, and public officials may seek to punish this form of protest.
No matter the issue, it is wrong—and incidentally, unconstitutional—for the state to single out and reject one viewpoint on an issue with divided public debate. Yet, this is precisely what the Silver antiboycott bill sets out to do.
Two weeks ago, I drafted a letter setting out objections to the New York antiboycott bill. Nearly 100 members of Columbia’s faculty signed the letter. University President Lee Bollinger then issued a statement condemning the proposed law in strong terms and endorsing the arguments made in the faculty letter.
For decades, Columbia has been the home of vigorous political debate and disagreement on issues from the Vietnam War to the rights of religious minorities. Columbia faculty, students, and staff have expressed their political views using a range of tactics, from petitioning to taking over University buildings. As a community of engaged scholars, we treasure the rich climate in which we teach, learn, and exchange ideas about which we often disagree vehemently. The proposed law threatens to punish our colleagues who participate in this rich climate of debate and will surely chill future discussions about justice in the Middle East.
Professional academic organizations that our faculty belong to frequently take positions on matters of public concern, from climate change to the detention of scholars in Iran. Membership in a professional organization and attendance at its annual meetings do not necessarily indicate individual agreement or disagreement with the positions that the organization takes. And these diverse memberships certainly do not reflect the overall views of the University.
Statutes, such as the Silver antiboycott bill, that seek to suppress educators’ right to participate in public affairs have long been condemned by the U.S. Supreme Court as an affront to freedom of speech and the essence of democratic self-rule in a free society. An overwhelming number of the Supreme Court’s free-speech cases have involved threats to educators’ free-speech rights. These cases establish a fundamental and unwavering principle: “Speech concerning public affairs is more than self-expression; it is the essence of self-government,” (Garrison v. Louisiana, 1964). The Supreme Court has frequently reaffirmed that speech on public issues occupies the “highest rung of the hierarchy of First Amendment values” and is entitled to special protection.
In few other precincts of society are First Amendment values more important than in academia. As the Supreme Court has noted, “our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom,” (Keyishian v. Board of Regents, 1967).
Tragically, the Silver antiboycott bill is not the first of its kind whereby the New York legislature sought to impose upon the academy a particular orthodoxy on a matter of public concern. A 1949 amendment to New York’s education law, known as the Feinberg Law, disqualified any person suspected of pro-Communist sympathies from employment in the education system and required prospective teachers to sign loyalty oaths. When the law was challenged on First Amendment grounds, the Supreme Court held that the Feinberg Law was clearly unconstitutional.
The Silver antiboycott bill targets a particular form of First Amendment expression: the boycott. About this the Supreme Court has also been clear: Boycotts “to bring about political, social and economic change” are unquestionably protected speech under the First Amendment. This form of political action has been used in countless contexts, but it has a particularly important history in the United States as a tactic to challenge Jim Crow segregation in the U.S. South, including the famous Montgomery Bus Boycott led by Dr. Martin Luther King Jr.
Regardless of one’s position on any particular boycott, the signatories to the Columbia faculty letter all firmly believe that academics have a right to express their political views through a wide range of protected speech, including boycotts. A law targeting the boycott today cannot be differentiated from the laws that punished boycotts in the U.S. civil rights movement or those that compelled academics to sign loyalty oaths as a condition of employment. Simply because a cause or political viewpoint is unpopular with elected officials does not—and cannot—justify a law censoring speech by academics.
The author is the Sulzbacher professor of law and the director for the Center for Gender and Sexuality Law at Columbia Law School.
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