On the “Gag Law” at Universities (Column 658)

On July 10, the Knesset passed in a preliminary reading the bill “Council for Higher Education [Amendment – Dismissal of Academic Staff for Incitement or Support for Terror and Budget Reduction, 5784–2024].” Alongside it, another bill is being advanced to shut down student groups that disseminate such statements.

A few days ago, at our university, the senior academic staff resolved to join the job actions undertaken by academic staffs at other universities against what were termed there the “Gag Law” and the “Intimidation Law.” These are bills intended to ensure that universities treat with severity statements by faculty members against the state and in favor of harming it and its citizens (the Gag Law) and to act against student groups expressing similar ideas (the Intimidation Law). These laws grant authority—and even require—university authorities and the Council for Higher Education to address problematic statements by lecturers and to deny budgets to those who do not do so.

The senior academic staff committees at all the universities view these laws as highly severe. The appeal sent to us was not to discuss whether the laws are proper, but what to do against them. As noted, already in the notice the laws are labeled with names laden with negative connotations. When I received the appeal, I was very torn about my position. In the end I concluded that I must oppose these laws (well, I’m a known leftist, and about me it was said: “Your destroyers and demolishers shall come out from you”), and I wanted to touch on this a bit here.

Positions in the debate

None of you will be surprised that this debate is saturated with “positions.” A glance at the sponsors of the bill shows where they sit politically. By contrast, university faculties are known to lean politically to the other side. Each side presents a tendentious picture and paints the other as wicked and fascist or treasonous. Some call to stop the continuation of the judicial reform and the destruction of democracy, while others call against them to stop treason and academic leftism, and cooperation with the enemy (in wartime). Slogans and emotions have led the debate, and it was rather difficult to find someone discussing the matter on its merits.

When, about a year ago, a similar proposal arose for job actions by the academic staff against the judicial reform, there was no debate at all about whether the reform was worthy or not, because for the initiators that was a given. The only question was whether there is justification to shut down an academic institution in protest. That too was obvious to them (just as the Histadrut shut down the economy on the same grounds). In that case I joined vigorous action against Bar-Ilan’s academic staff joining the strike, even though I opposed the reform and the way it was carried out. I didn’t think it was the business of the academic staff, and I didn’t see grounds for shutting down studies. It was clear to me that this was an overtly political move, and therefore—even though it was going in my direction—I opposed it. In the end, the universities did decide to strike, but Bar-Ilan did not join (even though within our staff there was a large majority in favor of striking, the bylaws require 70% to declare a strike, and they didn’t reach that).

Returning to our laws, needless to say, the Attorney General also opposes them, but in the eyes of the sides this too is received positionally. The protesters, of course, brandish her opposition as if it were the word of God, while the supporters portray her as leftist and adversarial to the government. Not only is everyone acting from a “position,” but each is certain that the other—and only the other—is acting from a “position.” I can tell you clearly, from my seat as Secretary-General of the UN, that in this case—as in almost all others—everyone is in the same boat.

Yet unlike the reform, regarding the recent laws I have heard here and there some substantive voices. There were a few people who clearly lean right (i.e., toward Bibi and Likud—I don’t mean “right” in any substantive sense), and even support the judicial reform, and nonetheless oppose these laws. The discussion here was a bit more balanced, though I did not hear of anyone who opposes the reform and supports these laws.

Here I wanted to offer a few remarks about these laws and the dispute over them, which have significance beyond this particular debate. My intention is to explain my position and try to do so in a measured way, to contribute something to the substance of the discourse and the arguments which, sadly, have long vanished from our public square. Pity.

The need for the laws and mitigating circumstances

I must preface by saying there are several considerations in favor of these laws. There is indeed a sense that academia exhibits problematic phenomena of supporting the enemy and expressing problematic positions—especially in wartime—that do not receive the appropriate response. At least not symmetrically relative to opposing positions. The wording of the laws themselves is, to my understanding, fairly moderate. They address the universities and then the Council for Higher Education to enforce them, not extra-academic bodies (the government, the police). They also condition these measures on decisions by legal bodies (within the university, within the Council for Higher Education, and external to it).

Therefore, the hysterical claims of an “hostile takeover” of academia, McCarthyism, gagging, harm to academic freedom and freedom of research, etc., are greatly exaggerated (just like the claims about the “collapse of democracy” because of the judicial reform). But the fact that someone exaggerates doesn’t mean they are wrong—it only means they are not wise (fulfilling the inverse of the saying: on the road, don’t be right—be smart).

Starting point: Freedom of expression

Despite all of the above, I oppose these laws. As a starting point, I attach great value to freedom of expression, including the freedom to express the most extreme positions (see Columns 6, 165, and more; I also oppose banning Holocaust denial). Censorship is the mother of all sin—both in itself and because you never know who will wield it and how. If every governing side decides on censorship according to its positions, we won’t get far. But those are only the dangers. In my eyes, this freedom has value in itself, not only out of fear of excessive use of such authority. If someone wants to argue there was no Holocaust, he should be allowed to, and every listener can decide whether he is right or not. I am not willing for the Minister of Education, the Knesset, or the government to decide history for me and what I must think. I am not willing to be presented with partial, tendentious information filtered by the authorities. A mature, intelligent person must be the sole party responsible for their opinions and actions, and certainly must be given the ability to form a position independently from the full range of arguments and information. The only limitation on freedom of expression is where the words present a tangible danger of harm or damage to a person or the public. In such a case, the law permits sanctions against the speaker and denies his freedom to do so.

From this it follows that, if a faculty member’s words pose a tangible risk of concrete harm, the matter can be referred to the police. There is no need for a special law, and certainly not to deploy the university as the arm of the law. But if, for example, he expresses the position that there was no massacre on October 7, or that Hamas is an altruistic charity and the State of Israel is committing genocide against it—he has the right to say that. The listeners will decide whether he is right or not. I do not see in such statements a tangible danger to anyone’s safety. The only danger they pose is to the welfare of truth—but I fear she has long been absent from our public discourse. Moreover, gagging like this buries the truth even more and hands it over to political commissars. To bury the truth, there is no need for such extreme statements—reading the newspapers is enough. Is anyone proposing to censor positions in the newspapers? Would we want the government to decide what we read or hear and which arguments or positions may enter the debate?

Just as I would not want political factions that did not win the election to use governmental systems to advance their values, I would not want factions that did win to use legislation to gag criticism from various opposition actors, annoying as they may be.

Legislating a special law dealing with universities is problematic for several reasons. It portrays them as problematic institutions that do not obey the law (no law was legislated for any other type of worker). It also deploys the university as a governmental instrument, which is not its role, and inserts it into unnecessary tensions with its members. It also tries to influence the types of people and the content of ideas expressed there. It also broadens the limitations on freedom of expression specifically for universities, which is absurd, since there that freedom is even more important. Not by chance do the most extreme statements often appear in academia: its role is to present different positions and spark debate. This freedom can yield extreme and irritating positions (see Column 654 on the nonsense that only intellectuals can produce), but that is the price of freedom. I would not want us to lack freedom. And even if someone feels their freedom is being denied and that the other side is behaving unfairly (for everyone’s information, both political sides among us feel so and are entirely certain of it), the way to balance this is not to act violently and unfairly in the opposite direction. That only escalates matters and we all suffer. In that way, we indeed reach a real threat to our democracy.

Debate behind and in front of the veil of ignorance

In Column 375 I argued that laws and rules of the game should be set behind the veil of ignorance. The claim is that it is improper to set rules by looking at their outcomes in favor of one side or another. The rules must be fair and judged by their fairness, not by whether they benefit this or that side. That, of course, does not exist in our public and political system. In Column 548 I argued that in Israel the rules of the game are constantly changed according to which side benefits, and I showed there the great harm caused to all of us by this.

In Columns 517 and 581 (see also my discussion with Tirgitz here and also here) I argued that it is possible to set agreed-upon rules of the game in a society where there is mutual trust between the sides. Everyone knows that activity will proceed properly and within the rules. But if there is mutual suspicion, and each side suspects the other will act improperly, then it will try to change the rules in its favor. In such a situation, the rules are set by the strong to their own advantage, not behind the veil of ignorance as they should be. For example, when there is a government or a judicial system that acts forcefully, disregards basic fairness, and tramples all rules “off the diving board,” it is very hard to speak about objective considerations regarding how we should construct the relations between the executive and the judiciary. The feeling is that there must be a force to balance the government of horrors / that judicial system—even if, behind the veil of ignorance, it would indeed be possible and appropriate to structure the checks and balances differently. That is why examples from various countries offered as precedents for proper structures and balances always make me smile. That may be true for an academic discussion among reasonable and fair players. Here each bends the rules to his advantage and, of course, blames only the other side for bending the rules and behaving unreasonably and unfairly. When there is no trust and each side acts forcefully, veil-of-ignorance considerations are meaningless.

In our context too, if we had a reasonable government—if level-headed, wise, and integrous figures were acting rationally—we could speak of the proper balances between government and academia, and then perhaps I would say these laws are not so awful. Behind the veil of ignorance, these laws are not as draconian as they are portrayed. But given the dramatis personae among us, the situation is entirely different. I would very much not want Karhi or Miri Regev, Deri, Gafni, Avi Maoz, or any other member of the colorful and limited menagerie that staffs our coalition to determine who is a traitor, what constitutes incitement, and who should be fired without benefits. These are not figures one can ignore and proceed “behind the veil of ignorance.” Because of these figures (and those facing them—see below), in our case the debate is conducted in front of the veil, not behind it as it ought to be.

Two examples

Fortunately, we can examine concrete examples of statements (see for example here) that the police—under the inspiration of those eminent figures—decided constitute incitement and require investigation and perhaps indictment, and which, in the coalition’s view, also require immediate dismissal. From this you can infer what awaits us all if we give them this power.

Take as an example the remarks of Prof. Anat Matar (Philosophy, Tel Aviv University), who eulogized the “noble” character of the terrorist Walid Daqqa. Beyond the factual question—I don’t know whether he recanted his deeds (there were such claims)—I do not understand why these infuriating words are incitement. Is there any tangible danger expected to anyone as a result of these words? Yes, we are dealing with a far-left academic with bizarre and very unintelligent views. I have known that for a long time. But she still has the right to say whatever she wants about whomever she wants. Those who disagree should likewise express their opinions and present their arguments. Stupidity is not yet a criminal offense, and I would not want it to be (or should I?…).

Or look at the case of Prof. Nadera Shalhoub-Kevorkian (Law, Hebrew University), who accused Israel of genocide, denied the October 7 massacre, and said this is the time to abolish Zionism. Which of these pearls qualifies as incitement? What danger is expected to anyone as a result of her words? Do you really think some Arab will carry out an attack because of what she said? Are we lacking inciters at home and abroad who openly call for attacks and even fund them? Does anyone seriously want to claim that a tangible danger was created here?

There are parties that enter the Knesset time after time even though their platforms are in direct contradiction to the law (which forbids anti-Zionist and racist parties from entering the Knesset). In that law there is a certain logic (though I still think it is not right and not reasonable), since the Knesset is a body that grants its members the power to act. I can understand those who do not want to give power to people with such views, because then there will be practical consequences. But the expression of opinions of any kind, so long as no practical consequences are expected, cannot be forbidden in a reasonable regime.

In my view, in all these cases and similar ones, the public—and worse, the enforcement authorities—acted out of a rare and “Kevorkian” (cf. Kurt Vonnegut) arousal of passions. People took, or at least demanded, steps against the speakers simply because the words enraged them, especially against the backdrop of the October 7 massacre and the current war. This is something that should not be done.

Critique by the Israel Democracy Institute

In the document here you can read a detailed critique of the bills. Among other things, they write the following:

Already at the level of purpose, the proposal fails badly. The proposal does not specify the cases in which faculty and teachers in institutions of higher education expressed support and identification with acts of terror. The experience of the past year teaches that what is in the political crosshairs are statements meant to criticize the government or statements that deviate from the consensus. This itself shows that we are not dealing with a real fight against terror but a foolish attempt to infringe freedom of expression with respect to infuriating and even repulsive statements, which have no real connection to the fight against terror or to some other vital social interest. These are precisely the statements that the right to freedom of expression is meant to protect. This is a move intended to create a chilling effect, to deter from voicing statements that deviate from and challenge the consensus—that is, to suppress political free speech at its most sensitive point and thereby undermine a necessary condition for the existence and functioning of democracy.

The clear flaw of the proposal is that it does not answer a real social need, despite pretending to do so. It slanders academics and their institutions without a factual basis. It is a smear of higher-education institutions and a distortion of reality. Its real aim is gagging and political persecution, and it inflicts serious harm on Israeli democracy. Without full political freedom of expression, the election process loses its value and meaning, and democracy does not exist even in its thinnest procedural sense. The proposal promotes a particularistic political conception, since we may assume there is no intention to apply it to a faculty member who might incite to commit genocide or war crimes.

There is no dispute that the fight against terror—against terror organizations, their members, and those who express identification with them and with terror acts—is a paramount struggle that deserves the full allocation of required resources. The Counter-Terrorism Law, 2016, already provides all the authorities and tools for this struggle. However, that law applies to the general population and to all institutions and individuals within it, as is proper. It anchors authorities and tools—mainly in the realm of criminal law—and places them in the hands of those authorized and expert in the field. There is no need for additional arrangements to ensure proper conduct in matters of security and preventing terror.

Well said.

Employing workers who harm the state

One might also raise a claim unrelated to questions of incitement and free speech: that it is improper for the State of Israel to pay salaries to those who harm it and do not identify with its existence. I oppose this claim too. It is improper to evaluate state employees—and certainly not university lecturers—on the basis of their opinions. They should be judged by their academic achievements. If they undertake actions that truly harm the state (such as calling for BDS boycotts and the like), beyond mere statements, then in extreme cases there may be room for action. At least where clear falsehoods are involved and not merely the expression of opinions. I believe there are rules about this in the civil service regulations and the codes of conduct for various kinds of state employees (for some reason, such rules are not applied to rabbis, for example). But even if so, there is no need for a separate, special law for academia.

Would the angry right-wingers want academics to be unable to express support for preserving the Sabbath or opposition to LGBT? Under a different coalition, that too could happen (and perhaps, sadly, will) quite easily.

A note on reciprocity

From what I’ve written here, one might get the impression that the problem lies only on one side of the political map. Not so. My topic here is the laws concerning academia, hence the focus. But the phenomenon is general and appears on both sides of the political divide.

Silencing from the left is very common, though usually not by law—if only because the left has not been in power for a long time, and the law is not in its hands. Statements against LGBT, or chauvinistic statements, are simply gagged or encounter disproportionate, self-righteous rage and wild delegitimization. Any attempt to separate men and women (by Jews only, of course) is “exclusion” that is banned by legal authorities. Every act or statement by Smotrich or Ben Gvir is “bizarre” and “messianic,” which naturally prompts them to behave even more outrageously. In places where “left” (that is, liberal) forces have authority and power (as noted, they have not been in government for quite some time), one can also see the actual use of power: in the press; continuing with the Medical Association (see the case of Dr. Sudi Namir, in Columns 86 and 225); in the judicial system; and more.

This picture has another implication. Since the phenomena exist on both sides of the divide, they also trigger one another. My sense is that deviations from proper conduct are usually accompanied by counter-deviations from the other side. Thus, for example, the judicial reform was born from problematic conduct by the judicial system, which consistently refuses to accept limits, oversight, and restraints. That conduct begot the coalition’s deviation with its reform to the other extreme. The same mutuality appears regarding academia. There is a clear sense of persecution and lack of advancement for academics who express right-wing or conservative positions, and this provokes counter-persecution from the right. There is a sense that academia deals more harshly with those who express positions that deviate toward the conservative direction than with their “liberal” (or pro-Palestinian) counterparts. I already gave the example of Ben Gvir and Smotrich above.

In our politics, each side uses the power it has against the other forces. Thus the left uses the judicial system and the press against the government, and likewise the right uses the government against academia. This is a game that keeps escalating, and since no side can stop it alone and be a “sucker,” we are stuck. Halting this dangerous process and returning to setting reasonable rules of the game behind a veil of ignorance can only be done by agreement between both sides. Sadly, I don’t see how that can happen. We are stuck in a game of chicken with no exit (see, for example, Column 287).

At least one thing calms me: I am confident that the discussion and the talkbacks that will follow this column will surely be balanced, substantive, and free of “positions.”