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Notes -
Texas Governor Abbott signs law attempting to ban free speech at universities whenever the speech criticizes Israel in certain ways (described below).
The Executive Order requires all universities to —
Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution.
Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.
Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech.
Section 448.001 reads
And this definition includes (among other things) —
Drawing comparisons of contemporary Israeli policy to that of the Nazis
Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
These examples are intentionally ambiguous and can be weaponized by politicians or the judiciary against critics. The first example simply bans anyone from criticizing Israel in the same way that Israel routinely criticize others, by comparing them to Nazis. This cuts off a whole spectrum of political comparisons from ever applying to Israel. The second example could imply that you are antisemitic if you criticize Israel for things without also criticizing other nations in the same breath, however culturally and politically distant the nation. The third implies that an ethnostate cannot be considered racist if it is Jewish. The fourth implies that no one — not a single politician who is Jewish — can be accused of being more loyal to his self-defined homeland than America.
IMO this is a clear affront to freedom of speech. I find it embarrassing that any conservative in America would sign a law like this. The ambiguity is dangerous because it could be used by biased politicians or judges in its broadest application. While I don’t think it’s good public rhetoric to compare Israel to Nazis, that should be legal because (1) Nazis are everyone’s go-to villains, (2) Israel was recently the subject of an ICJ inquiry regarding genocide, (3) ethnonations should be extra scrutinized for genocide, (4) ethnonations with a history of genocide (Kitos War) and who fondly remember their nation previously committing genocide in their Holy Text should be super extra scrutinized for potential genocidal acts. The holocaust, like it or not, has no actual relevance to the current conduct of the Israeli regime. In real life, multigenerational ethnic groups do not swear off the same violence that their grandparents were victims of. So comparisons are fair game, if usually in bad taste.
Some university will sue the relevant entities in federal court (or some student will sue a university in federal court) and the order (or universities compliance with it) will be permanently enjoined. The policies the universities are to develop are straightforwardly content based restrictions on speech. This means they must satisfy strict scrutiny. There is no way this order, or policies flowing from it, satisfy strict scrutiny. Especially if the IHRA's definition of antisemitism is to be a guide to sanctioned speech.
While this order is not mostly aimed at Nazis- although they’re not going to get a special exemption either- Greg Abbott can get a few Allies onboard that normally don’t go conservative, while he has a partly captive judiciary to work with. His chances are better than you think.
I am skeptical scotus lets this go into effect. The fifth circuit can potentially get it going temporarily but I doubt it lasts long.
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