BY STEVEN LUBET
Steven Lubet is Williams Memorial Professor and Director of the Bartlit Center for Trial Advocacy at Northwestern University Pritzker School of Law. A version of this post appeared at The Faculty Lounge on October 28.
It was deeply objectionable when Zoom and other networking platforms blocked Leila Khaled’s webinars at San Francisco State University and other campuses earlier this fall, but accurate information about her, which was not provided by her sponsors at the time, is nonetheless necessary to understand why the tech companies acted as they did – and what can be done about it in the future.
Academic freedom rests on a postulate to which there is a corollary, and both are relevant to the censorship of Khaled’s presentations. The postulate is that democracy benefits when teachers and scholars are free to determine their subjects for research, teaching, and speaking. The corollary is that they must be as truthful as they are able. Regrettably, many defenders of Khaled’s right to speak, including the AAUP, have been less than forthright about who she is and what she had done.
It was bound to be controversial when SFSU’s Arab and Muslim Ethnicities and Diaspora Studies Department (AMED) announced a Zoom-based webinar titled “Whose Narratives? Gender, Justice, and Resistance: A Conversation with Leila Khaled,” scheduled for last September 23. Although unmentioned in the promotional materials, Khaled was an operative of the Popular Front for the Liberation of Palestine who hijacked two airplanes, in 1969 and 1970. She has since been a member of the PFLP’s Political Bureau. For the SFSU event, however, she was misleadingly billed only as a “Palestinian feminist, militant, and leader.”
SFSU President Lynn Mahoney resisted protests over Khaled’s appearance. In a message to the campus, she “emphatically” affirmed “the right of our faculty to academic freedom and to conduct[] their teaching and scholarship without censorship.”
An organization called the Lawfare Project bypassed Mahoney, appealing directly to Zoom. In an open letter to CEO Eric Yuan, the Lawfare Project argued that hosting Khaled would potentially constitute “material support or resources to a foreign terrorist organization,” in violation of the U.S. Criminal Code. As the letter pointed out, the PFLP has been on the State Department’s list of designated terrorist organizations since its inception in 1997.
Unwilling to risk violating federal law, Zoom invoked its “terms of service” and blocked the webinar, as did Youtube and Facebook when AMED attempted to switch platforms. Both the AMED sponsors and Mahoney decried the censorship, as well they should have.
In a creative and appropriate response to censorship, the U.S. Campaign for the Academic and Cultural Boycott of Israel announced a “National Day of Action against the Criminalization and Censorship of Campus Speech,” calling upon “anyone with access to a university Zoom account” to hold a webinar featuring a message from Leila Khaled, to be held on October 23. The USACBI appeal included no background for her at all.
Only eleven webinars were ultimately scheduled, none of which appear to have come close to attracting the hoped-for “hundreds or thousands of attendees.” Turnout for the five programs that I attended ranged from a dozen to about forty-five participants. At only one of them was Khaled identified as a PFLP operative.
Deplorably, however, two webinars – at NYU and the University of Hawaii – were again blocked by Zoom. The AAUP chapter at NYU issued a statement in protest, wryly noting that it is “an act of sick comedy to censor an event about censorship.” Equally ironic, however, was the chapter’s reference to Khaled only as “a Palestinian rights advocate.”
The national AAUP statement was little better, describing Khaled as “a Palestinian activist accused of terrorist activity,” and ignoring the fact that her own memoir proudly recounts the two hijackings in detail. Is it the AAUP position that aircraft hijacking is not terrorism? If so, that is in contradiction to both U.S. and international law. But put the definition of terrorism aside as perhaps controversial within the AAUP membership. A candid statement would at the very least have included Khaled’s leadership role – real, not accused – in the PFLP, which is on the State Department’s list of “designated foreign terrorist organizations.” That was, after all, the well-known basis for Zoom’s decision. It was thus unfortunately misleading for the AAUP statement to say that Zoom “offered no justification [other than] information it received from an outside group.”
The sanitized references to Leila Khaled matter because it is impossible to assess the validity of Zoom’s actions – and YouTube’s and Facebook’s – without full information. Although there could be no good reason other than political prejudice for censoring a “Palestinian rights activist,” there may be a legitimate legal basis for denying a platform to an admitted hijacker and leader of a designated terrorist organization.
Like it or not, it is a crime under U.S. law to provide “material support” to a “designated foreign terrorist organization” such as the PFLP. In 2009, a 6-3 SCOTUS majority held, in Holder v. Humanitarian Law Project, that “material support” may include “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.” That is a muddled standard – seriously overbroad, in my opinion – but it could still plausibly be applied to facilitating a speech by a member of the PFLP’S Political Bureau. (Airplane hijacking is a terrorist act by legal definition, and Khaled is steadfast in her commitment to armed struggle.)
Thus, the tech giants’ decisions were not vindictive or irrational. As publicly traded companies, with fiduciary duties to shareholders, they were rather playing it safe in a volatile and unprecedented situation. I would like to think that no university would have acceded to complaints about the Khaled webinar — just as SFSU did not cave – but businesses answer to a different constituency.
In a better world, universities would not be dependent on Zoom and the others for webinar platforms. In a perfect world, companies like Zoom would be committed to academic freedom. But if we expect that ever to happen, there must be a reciprocal commitment to honesty and accuracy about the programs and people being hosted.
If it had been up to me, every one of the Khaled webinars would have gone ahead uninterrupted, although I would have joined a silent protest. But I am a professor, not a business executive. It is unreasonable, however, to expect Zoom to take legal risks over controversial events when the academic sponsors themselves are not straightforward about the webinar’s featured speaker. Unlike the general right of free speech, which imposes few if any obligations on the speaker, the exercise of academic freedom requires us to be as truthful as possible. The postulate demands the corollary.
Professor Lubet makes two useful and important points. First, is that faculty sponsors of outside speakers have an obligation to be forthright and honest about who those speakers are and what they may stand for. After all, I think most readers of this blog would be genuinely upset were, for example, the notorious white supremacist and neo-Nazi Richard Spencer identified simply as “a conservative activist.” As one of two signatories to the AAUP’s letter to NYU president Andrew Hamilton (AAUP president Irene Mulvey is the other), I am not convinced, however, that we had the same obligation or that we in any substantive way were misleading by calling Khaled “an accused terrorist.” After all, by the time our letter was sent information about her background was widely circulating. Moreover, our letter’s purpose was not to defend Khaled’s right to speak but to defend the faculty’s academic freedom right to invite and sponsor her talk, a defense that Lubet supports. In addition, to my knowledge it is indeed the case that Zoom at the time offered no real explanation of their decisions other than to refer to a violation of their terms of service. That this referred to Khaled’s affiliation with a designated terrorist group and the firm’s fears of violating the law is an obvious inference, but at least initially Zoom did not publicly draw that connection any more than the event’s sponsors revealed full information about Khaled’s background.
Lubet’s second point is, in my opinion, the more important one, which is that Zoom’s actions were “not vindictive or irrational” but entirely predictable from a private for-profit company with such a firm’s common aversion to legal risk. This is precisely the point. While lawyers and law professors may dispute Zoom’s reading of the law (as well as Lubet’s), it shouldn’t surprise us that private companies did not respond as we would hope an academic institution would — and San Francisco State did — but instead applied the most cautious interpretation. The incident therefore causes us to ask, what are the implications for academic freedom, privacy, and similar concerns of higher education’s growing use of private for-profit learning platforms like Zoom — exponentially increased during the pandemic? On Friday and Saturday AAUP’s Committee A on Academic Freedom and Tenure met and empowered a subcommittee to work on a potential policy statement on this issue, reflecting our concerns not only about this series of events but about other academic freedom problems associated with this year’s headlong rush into remote learning on privately held platforms (see, for instance, the concerns of Columbia law professor Eben Moglen: https://academeblog.org/2020/09/27/and-then-there-is-zoom/).
Thanks for the comment, Hank. It is good to see that Committee A is taking up this important work. To be clear, I think that Zoom’s reading of the law, and the Lawfare Project’s, was too expansive, but nonetheless within a zone of risk averse interpretation.
As to whether Zoom offered a “real explanation” of its decision, here is the message given to SFSU, which seems fully explanatory:
“In light of the speaker’s reported affiliation or membership in a U.S. designated foreign terrorist organization, and SFSU’s inability to confirm otherwise, we determined the meeting is in violation of Zoom’s terms of service and told SFSU they may not use Zoom for this particular event.”
https://nationalpost.com/news/world/zoom-cancels-university-sponsored-talk-by-palestinian-who-hijacked-a-plane-in-1969
I had not seen that, but at least initially it was not a public statement — and it was not an explanation provided to the organizers of the NYU session, who of course, surely knew this was the rationale.
Zoom’s explanation was published in the National Post and elsewhere on September 25, nearly a month before cancelation of the NYU program. It was certainly known to USACBI, the organization that issued the call for the National Day of Action and provided a video of Leila Khaled to be played at webinars, including NYU’s. The purpose of the NYU webinar, of course, was to challenge or evade Zoom’s censorship of Khaled.
But that is a small point. We are in agreement on the far more important issues of academic freedom, including the right of an academic department to present a webinar featuring Khaled (while forthrightly describing her).
Yes, let’s have TRUE and EVEN-HANDED Academic Freedom and Freedom of Speech.
But let’s also give those same rights to people who challenge and correct exaggerations, euphemisms, hyperbole, misstatements and outright lies — i.e., Khaled was an operative of the Popular Front for the Liberation of Palestine who hijacked two airplanes, in 1969 and 1970. She has since been a member of the PFLP’s Political Bureau. For the SFSU event, however, she was misleadingly billed only as a “Palestinian feminist, militant, and leader.”
I stand by Justice Brandeis’s famous quote and none of the PSEUDO-“P.C.” police has ever challenged its wisdom: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”
How surprising a lawyer, who would have taken up a “silent protest” of the Zoom meeting with Khaled, is explaining its censure by a high tech company that, for now, seems to have a monopoly on higher education during a pandemic.
It seems to me the remedy does not lie with putting one’s hands into the taffy that is lawfare. Rather, people who know more computing than I do have suggested that there are already other platforms available that can be adapted for video conferencing, giving Zoom some competition.
Not every view should be presented at a university. We would object to Timothy McVeigh to sharing his manifesto on campus. Leila Khaled was invited because of her terrorist background. There are many other non terrorist feminists who who could be invited. There is a difference between studying terrorist organization and inviting actual members to recruit on campus.
I really appreciate this blog post–thank you. It raises concerns I had when I first started reading about this case. I’d be very surprised to see most AAUP members defend an event that brought in a speaker who is considered as anti-Black as Khaled is considered to be anti-Semitic. Some members of AAUP worked round the clock to get the late UNC-W Mike Adams fired (while many others simply looked the other way) because they thought he was racist. And he never hijacked an airplane or tried to detonate a grenade to kill people.
For what it’s worth, the curriculum USACBI designed to support these webinars was forthright about who Leila Khaled is, her political affiliations, and the hijackings for which she has gained such notoriety (if anyone would like a copy of it, please email us at usacbidayofaction@gmail.com). Moreover, at the webinar I facilitated at UMass Boston, for example (which the author seems not to have attended – we had close to 100 people in the audience and more than that registered), we spent a fair bit of time talking about Khaled, the PFLP, and their historical place in the Palestinian resistance movement more broadly (watch the webinar here: https://www.youtube.com/watch?v=L_WTKyQXVyA&t=528s). So I think this article paints with a bit too-hasty and too-broad of a brush.
That said, there is another issue here: whether or not the US government is the arbiter of the meaning of terms like “terrorism.” As even practitioners of “Terrorism Studies” will attest, there is no agreed-upon or even generally accepted definition of the term “terrorism” across the academic and policy worlds, and there exists substantial critical literature – not to mention an entire field of Critical Terrorism Studies – that calls such designation by the US government into question. Indeed, it does not take too much more than a moment’s critical thought to raise questions about the US government’s views regarding terrorism, given that, for example, both Nelson Mandela and the African National Congress were considered terrorists by it and the FBI recently attempted to brand Black Lives Matter activists “terrorists” via a new category of “Black Identity Extremists.”
Given all this, the academic freedom that was infringed by Zoom was not simply censorious, but also complicit with the general hegemonic cultural silencing of any critical discussion of “terrorism” whatsoever, not to mention political violence or armed struggle. Surely intellectual inquiry ought to be allowed even here! This means that the original SFSU webinar was not lying or being dishonest in describing Khaled as a “Palestinian militant, feminist, and leader,” but rather making an argument as to who she is and how she is best described. Surely we could have had the same discussion about Mandela in the 1990s and still can today regarding Black Lives Matter. And it should give us pause to consider that it seems to be people’s movements for liberation that the US is so eager to brand as “terrorist.”
Professor Schotten unintentionally proves my point. She writes, “the original SFSU webinar was not lying or being dishonest in describing Khaled as a ‘Palestinian militant, feminist, and leader,’ but rather making an argument as to who she is and how she is best described.”
If so, it was a stealth argument that deceptively omitted the most salient facts. That is precisely the sort of misleading practice that must end if we are to expect businesses like Zoom to respect academic freedom. Describing Leila Khaled as only a “Palestinian militant, feminist, and leader” is a bit like describing Stephen Miller only as an “immigration reformer” and rationalizing that an argument.
Even if you think Stephen Miller should not be described as an “immigration reformer,” the language used to describe a speaker can never justify censorship of an event. There is no academic obligation to describe speakers in terms that their opponents (including governments) use. It is absolutely wrong to say that such descriptions are a “misleading practice that must end if we are to expect businesses like Zoom to respect academic freedom.” We should expect everyone to respect academic freedom even when they disagree with the descriptors used to promote an event. We should especially expect tech companies not to ban events when they are merely providing technical access to an event, which does not remotely constitute material aid in any reasonable interpretation of the law (if it did, all universities would have to ban the showing of all videos of Khaled anywhere on campus).
Where did you get the idea that I supported censorship of an event? My point, if I must repeat it, is that we cannot reasonably expect for-profit businesses to have the same values as academics, but we are more likely to get their respect when we are straightforward about our events.
Calling Khaled a PFLP operative who hijacked two airplanes is simply a statement of fact, not a term that her opponents use. And surely students are entitled to an accurate description of speakers when they choose whether to attend an event.
Perhaps our difference of opinion lies only in the definition of “expect,” when you say “we should expect everyone to respect academic freedom even when they disagree with the descriptors used to promote an event.” I would call that an aspiration, hope or request, wishing for an ideal world.
In the real world, where businesses have many other considerations, we can only expect (that is, predict) that they will act according to their interests. We can better encourage executives to respect academic freedom if we are honest about what we are doing. Pure demands will more likely take us to a dead end,
Prof. Lubet, You have things backwards: You think students are “entitled” to accurate descriptions of events, but we can only hope to persuade companies doing business with a college to respect academic freedom. Both are wrong. When it comes to descriptions of events, the organizers decide. End of story. Nobody is “entitled” to a description they prefer. Accuracy is only an aspiration.
In the real world of academia, universities can and must compel the businesses who work for them to respect academic freedom. If a college rents space for an event, it cannot allow the business to decide what content is allowed. If a college outsources its campus email to a vendor, it cannot allow that company to censor the email. Colleges need to do a lot more than “encourage” their contractors to “respect” academic freedom. They need to expect it, and compel it whenever possible, and fire the companies that do not comply. If all tech companies refuse to allow academic freedom in online events, then colleges ought to band together and create their own companies that will.
John K. Wilson, One can argue that being transparent rather than deceptive in your description of an event is a good, ethical thing to do and this argument does not mean that censorship is ever ok even if someone failed to be transparent. AAUP’s principles, guidelines and best practices do not just stick to laws, for the organization has general principles such as seeking truth, educating for the common good, and so forth. So Lubet’s point is a good one, that as a general practice scholars ought to be truthful.
Imagine if I invited a campus speaker who is a confirmed anti-Black activist, who had already attempted to kill Black people and had served jailed time for it and had written an autobiography about it. I can almost guarantee you that the talk would be censored, and that a social media campaign would begin that would call for me being fired (especially if I described the speaker deceptively as, say, an activist for European heritage). And AAUP would do nothing about it. In fact, they’d mention on blogs like this how such anti-Black views run counter to the inclusivity the university espouses, makes many students feel that the learning atmosphere is hostile to them, and that I am not a good scholar if I did not understand the true toxicity of the speaker’s positions, and that I am not an ethical scholar for not being more transparent in my description of the speaker’s position and previous actions.
Just as there is a political context around who gets defined as a terrorist, there is a political context around who gets censored and who gets fired. There’s no purity in this as far as I can see. At the very least, it would be nice for folks to admit their own biases when they defend one speaker while silencing another.
If the AAUP wants to be taken seriously on matters of free expression and censorship, maybe its members should try defending the faculty, students, and guest speakers across the political or ideological spectrum rather than only those who lean in a particular political direction.
Of course, everyone ought to be truthful, but no one should be punished or banned simply because someone thinks they are not truthful in summarizing them. My critique of Lubet on this point is that he seemed to indicate that people were “entitled” to accurate descriptions, which goes beyond ethical norms. While most groups are occasionally guilty of hypocrisy, I think the AAUP and its members do an excellent job of defending faculty, students, and speakers across the political spectrum. I would encourage you to read my essay on this blog, “Why Banning Speakers Is Absolutely Wrong,” and my defense of John McAdams, and tell me that I only defend speakers who agree with my progressive politics.
There is a small genre of comments to this blog that argue from what the commenter contends the AAUP “would do” in some hypothetical situation but makes no reference to what it actually has done. Such seems to be the case here. While the AAUP has consistently upheld the rights of controversial speakers (see https://www.aaup.org/report/academic-freedom-and-outside-speakers), defense of those speakers and of their individual free speech is not a major part of the AAUP’s purview, at least in its academic freedom work, which is focused mainly on the protection of professors’ academic freedom as defined in the 1940 Statement and derivative policies. Still, as John Wilson notes, regular bloggers on this site, sponsored by the AAUP, have repeatedly risen to the defense of all sorts of controversial speakers, as I did with the noxiously racist and sexist Milo Yiannopoulos (see https://academeblog.org/2017/02/02/on-milos-right-to-speak/ and also my extensive discussion of the outside speakers issue in chapter 8 of The Future of Academic Freedom). Moreover, the AAUP consistently defends the academic freedom rights of faculty members with whom our membership overwhelmingly disagrees and may even find repulsive. John mentions his defense of Prof. McAdams. I might add that the AAUP submitted an amicus brief in that case to the Wisconsin Supreme Court. Just this year there was a case at Catholic University in which the AAUP intervened to defend a conservative adjunct professor dismissed for tweets about prominent Democratic politicians that the university deemed “inconsistent with the respect for human dignity,” albeit without success. There are other examples. Moreover, I might add that Prof. Lubet’s post, which takes AAUP leaders to task for being too circumspect about Khaled’s background but still defends her academic freedom and that of the event sponsors, came partly in response to our letter defending just such a controversial speaker, that is, Khaled. While I don’t think the AAUP ever took a formal position on airplane hijacking, it should be fair to assume that the organization does not support such actions, regardless of the cause they seek to advance. The AAUP does not even support the academic boycott of israel that Khaled and the sponsors of the censored events were seeking to advance. Yet AAUP President Irene Mulvey and I, in my capacity as Committee A chair, spoke out publicly in defense of their academic freedom. I’m sure I speak for Irene as well that we would do so in similar cases, should the ability of faculty members to organize appropriate discussions of controversial issues be improperly restricted by either an outside private provider like Zoom or by their own institution’s leaders.
Of course, this debating tactic would come up: the “terrorist vs. freedom fighter” argument that makes no distinctions between the two semantic terms. It almost always relies on Mandela or even American revolutionaries to support its equation of terrorism with “good” causes.
Euphemisms that hide the stark realities of innocent deaths and destruction to achieve political ends can sometimes be effective, especially when claiming that it seems to be people’s movements for liberation that the US is so eager to brand as ‘terrorist.’”
Why can’t these “people’s movements” (which may or may not have the full support of THE PEOPLE) use non-violent Gandhian or MLK tactics to attain their goals?
It is in fact commendable that Hank is willing to grant Free Speech rights to “all sorts of controversial speakers, as I did with the noxiously racist and sexist Milo Yiannopoulos.” Of course, Hank also has the Free Speech rights to call people “noxious” names and he should do so in print or even in person if he attends a Yiannopoulos (or other “deplorable”) speech on campus.
The problem has been that Hank’s inclusive philosophy (even with some accompanying sarcasm and insensitive verbiage) is not how today’s campuses work with regard to “controversial” speakers. Before the Plague hit, how many times did we read about the “cancel culture” of students (and often campus administrators) literally cancelling speaking engagements — sometimes with the excuse of “safety concerns,” inadequate security, excessive costs, inadequate space, etc.? My recollection was that there was almost one a week.
I agree with Professor Reichman that the AAUP has been exemplary in its support for academic freedom, and its opposition to academic boycotts, without regard to ideology, While certain members may from time to time either understate or overstate the scope of academic freedom, the AAUP provides a valuable and important forum for the discussion of these crucial issues.
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