Protesting the War in Gaza: Anti-War or Anti-Semitic?

>> Tom Church: This is The Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, joined as always by The Libertarian Professor Richard Epstein. Here at Hoover, Richard is the Peter and Kirsten Bedford Senior Fellow. He's also the Laurence A Tisch Professor of Law at NYU, and is a senior lecturer at the University of Chicago.

Now, Richard, I'd ask how you are today, but I think I'll protest you instead. I don't actually mean that. Today I'd like to talk about the nature of protest. To do that, I want to start with Israel, Iran, and then we'll get to Colombia, the university, not the country, and how far you're really allowed to go to protest what you believe to be an injustice.

So first, let's start with Israel and Iran, because we appear to be on the knife's edge of another Middle Eastern war. So we haven't talked in a week or two. A lot's happened, in retaliation for the Israeli strike on an Iranian general and a few others within Syria, Iran sent hundreds of drones, I think, dozens of rockets, and a handful of ICBM's at Israel from Iran, not from proxies within Syria or Lebanon, but from Iran.

Israel and the United States and a coalition, Jordanians and others, shot pretty much all of them down. And then, last night, we found out Israel retaliated with a strike of its own on several military targets within Iran. It's not clear that the attacks came from Israel, from the nation, from the actual physical place.

That could have been other closer countries or within Iran. And Israel hasn't taken official credit, I think, which has allowed it to deescalate. So, Richard, my query to you was retaliating from Israel the right thing to do. They were cautioned, maybe don't do this. Do you believe deterrence has been reestablished and should we expect more violence between these two countries?

>> Richard A. Epstein: Look, I think in effect they always did the right thing. I have a very strong heuristic in this case, which is whatever Joe Biden recommends, I think you should do the opposite. And when he decided that under these circumstances you should take the win and go home, he violated another one of these fundamental military maxims.

Which is, when you have a clear advantage, you have to press it, rather than to give them a chance to regroup. The trick about this, of course, is to press it in a way in which you don't get world sympathy for your enemy so that they will come in on his side.

And it's even more important to do so in a way which exposes their weakness, which makes it less likely that they'll try to engage in provocation. And I thought that the attack that they had was a master stroke. Because what it revealed is that when you start looking at this situation, the Israelis can capture the Iranians flat footed any time.

Now, why is that? Because the Israelis probably have, along with the United States, the best technology on the face of the globe for dealing with both offensive and defensive use is a very complicated weaponry, and Iran is a second class nature. And what this last round started to show after the first round is that, essentially, what they have in both, they lack in quality.

And if that's gonna be the case, they cannot sustain a distance war against a far superior enemy. So they're going to, I think, not only not escalate, I think they're going to try to step down because it's better to have some mystique than to have some serious losses on your table.

So I think, in effect, that the Iranian government has been, to some extent, humbled by all of this stuff. And when they signal through Russia that they don't want to go any further, I treat that as a stepping back. I don't treat that as a sign of position or prudence.

I think, in fact, what they've shown is that they've lost everything. The other thing I think that it does is if the Iranians are now going to be content to sit on the sidelines, they're gonna have to probably rein in a little bit their friends in Hezbollah, and maybe even in Hamas.

Otherwise, they're going to expose themselves yet again. And I do think that the Israelis need pretty extensive preparations to take on Rafah. But they would be well advised to do so and to ignore any advice from the president of the United States to let that situation sit. You cannot have a stable peace if you have, essentially, a war power capable of resurgence at any time.

As Hillary Clinton said when she went to Wellesley, and I appreciate the remark from her, is there was a peace on October 6th, 2023, and there was a ceasefire at that time, and Hamas decided to break it. So ceasefires don't work, incapacitation is the only thing that works.

And once you do that, it's going to reduce the risk of having serious dangers elsewhere. Because there's less of a chance of having a multi front war which you would otherwise have to face. So I think the position that Israel has is much stronger. And what happens is if you start looking at the way in which the world powers talk, generally speaking, people do love winners.

And if they think that the Israelis are going to survive, and if they think that they've conducted this thing with a fair degree of sense and decency, I think that they will begin to get a little bit of the international support that they lost. I thought it was very helpful when you heard people like Lloyd Austin come by and say, look, I've examined what's going on in these battles, and it turns out to call this genocide by Israel is foolish, please don't do that.

And there's the very influential work to which I refer all the time by John Spencer. Who seems to indicate exactly how proficient the Israelis are in fighting this kind of war, having done a better job at it than we did, for example, in combating ISIS in Iraq. So the way in which I see the situation, I think the furor is going to die down.

And I think you asked about how does this link to the. I think as the military situation seems to be tippling in favor of Israel and its allies, whoever they may be, in the Middle East, it's going to create a culture in which the protests that are being made by pro-Hamas supporters are going to start to cross the line.

>> Tom Church: Yeah, let's talk about that line. I want to mention for listeners, John Spencer is the Chair of Urban Warfare Studies at the War Institute, I believe, at West Point. You also mentioned, everyone loves the winner. It was leaked or revealed in the last few days that in conversations with the Saudis about normalization of relations with Israel, previously, the United States had said normalize with Israel, and we will not guarantee, but push for statehood for Palestine.

And it seems like it's softened. The recent news was the Saudis just wanted promises that Israel would talk about it, not that it would happen, but just talk about it. They're softening already in terms of normalization with Israel. So, I mean, strength against strength, I think.

>> Richard A. Epstein: Yes, but it is, I mean, the Saudis need the Israelis, because they are still worried about the Iranians and the Houthis and everybody else.

What they understand is that the United States is a sometime friend. You just look at Biden. One day he's hot, the other day he's cold, but on no occasion does he have a long term coherent strategy on how to deal with things. The Israelis have been remarkably constant.

And for all the talk about how terrible Netanyahu is, it seems to me that he's leading a coalition which has a bunch of people in it who are very strong and a series of generals who are very able running this thing. And in a war, you should never underestimate the importance of human capital.

It's what makes their defense and attack system so well, but it also gives them superior strategies. It's amazing, it's 7 or 8 million people, how much you can do in one of these things if you're discipline-focused and have your back against the wall. And I think all credit to Israel.

And at this particular point, I'm actually amazed that they have done so well so many times. I cannot think of a single major strategic mistake that they've made since this thing has started, and it's been going multiple times. And so I think the opponents of Israel have a certain degree of desperation, and that gets us Back to the domestic situation.

>> Tom Church: Indeed, let's return back closer to home. So Columbia University in New York City is in what seems like an all out battle with students protesting, I would say on behalf of the people of Gaza, but it feels, I think, maybe toeing the line toward anti-Semitism. So this week, Colombia President Minouche Shafik sat in front of Congress and answered questions about anti-Semitism on our campus.

Colombia has been one of these campuses around the country for months, since October 7, really, where there have been widespread protests, a lot of students camping out. And so soon after this, she actually had to call the NYPD to remove and arrest protesters who had set up an encampment on campus.

Now, Richard, I wanna know a couple things. One, were they breaking any rules? Is this a violation of some free speech or right to protest even on a private campus? Are these universities because it's not just at Columbia, but targeting anti war protesters, as Congresswoman Corey Bush tweeted out?

And would you describe these protests as anti war or anti-Semitic in nature?

>> Richard A. Epstein: My God, let's just take them all. First of all, I think Minouche Shafik was very shrewd. If you notice what happens, she goes to the hill, she gets grilled a little bit. She doesn't start to hem and haw about the glories of Hamas protests and so forth.

And she knows she's under pressure, and she uses the pressure to her advantage because she then decides to clean up the campus. These are protests have been camping out for days, even for weeks, perhaps even for months. And the day after the hearings come, she removes them all with the police.

What happens is basically what the Congress did is gave her cover and protection. She has now been called out for doing nothing. And when she does something, it's not just her doing it, it's everybody doing it. In terms of the way in which these protests go, I have a reasonably strong view about this, which is when you start talking about the phrase freedom of speech.

It is no different from the phrase of freedom of action, that every freedom that you have is bounded by certain other kinds of constraints. And those include the use and threat of force, fraud, defamation, and other types of situations which are wrong and done in private situations. And so in this particular case, the threat of force is obviously present in much of what Hama is stated, and the use of forces present in the form of trespass.

And the use of defamation is common in the way in which they create endless kinds of scandal. And so if this were just a private dispute, it's pretty clear that they're wrong on every major front. Then you wanna bring the government in? Well, the government, essentially, its major function is not to protect free speech as such.

It's to make sure that the delicate balance between speech that's free and speech which is coercive and unlawful is going to be observed in particular cases. So here, calling in the police when it turns out that the protesters have violated every fundamental norm. They've committed trespass, they've committed defamation, they've committed acts of violence and so forth, these are not legitimate protests.

If it turns out that many Hamas members at one time, what they did is they would write and circulate letters explaining why they regarded Israel as a kind of a genocidal society. That's close to the line but usual view that you have is that with respect to group defamation, you don't bring lawsuits against them.

You use counter speech, unless until it turns to a situation where there are threats from imminent trespass or abuse to person. And what's happened is Hamas has not been able to win people over by its more genteel members. So it's been taking to genuine kinds of violence. It blocks the road to O'Hare, it blocks the Golden State Bridge.

It basically disrupts the graduation ceremonies at your Alma Mater, the University of Michigan, and occupies campuses everywhere. It chases people off. And so what happens is not only is there cause beyond believed bad, but their tactics turn out to be just terrible. And it's going to alienate more and more of the American people as they start to realize that the greater, the wrong that you've committed, your greater insistence that you're right.

And so if people ask me what I like to think about this, if you look at the Israelis, what they say is Hamas committed an attack, and we're entitled to self defense. And if you look at what Hamas said is the Israelis are occupied. So whenever we use force and self defense and whenever the Israelis use force, it's a form of aggression.

It's an upside down world in which they live. And I think this is starting to come home to the American people, because as the protests become more a source of inconvenience to other individuals, they're gonna ask the question. Why is it that you have the right to make my life miserable in going to work, going to the airport, seeing family and friends and the like?

And I think, in fact, the pendulum is going to start to swing on this, and this puts Biden in a very bad position. But let me explain what I think his problem is. When you're dealing with unmitigated evil on one side and people are trying to uphold the rule of law on the other side, you can't play neutral.

And when he tries to play neutral, what happens is Hamas will never be satisfied without the exterporation of Israel. Getting rid of it is entirely, and nobody else is gonna tolerate that. You have to pick sides and if you try to saddle the fence, you're just inconsistent. You're kind of a bumbler and that's what he has tried to do in this case.

And there's just no way that you should try to spend your time winning over very fierce pro Hamas supporters in places like Dearborn, Michigan. It's just crazy because you alienate everybody else. So you have to pick side and the same thing in universities. It's very clear, universities can be a forum for all sorts of discussions, even crazy discussion.

But when there's violence on the campus and one side commits it, you attack them. And you don't say, well, we're gonna create parity by punishing Israelis for something they didn't do in order to be able to punish the Palestinians for the kind of terrible things that they have done.

And so the protest moment at this point has gone large beyond any kind of legitimate sort of protest. And I think what's happened is now once one university sees that you have to take steps against it, others will start to take care of it. And I think that the pendulum is going to sweep back.

And the important thing is to make sure that it doesn't sweep too far. If people want to say random and lunatic things and so forth, I think they're probably entitled to say them. But I think it's important also to remember that they can't use the name or the facilities of the universities to do so.

So the entire nature of this discourse was warped in my view, by one or two sentences that took place on October 8 from Harvard, using an official site with Harvard logos on there. The basic sentence was the Israeli regime is entirely responsible for everything that's happened in Gaza, and that's just such an outright lie.

And when you allow this thing to continue to flourish, what happens is the lies then proliferate, and it's harder to get yourself back to the appropriate position. So the proper response from Harvard should have been, not only could you not use our facilities, but you cannot engage in that kind of rhetoric on this particular campus.

We're gonna basically stop this from happening, we will throw you off this campus if you want to do it. If it turns out you say this under another auspice in another location, that's not Harvard's concern. That's a matter for the public authorities or for other property which is taken by other people.

That's, I think, the way in which this ought to work. And so, to my mind, in effect, the idea that this is legitimate protest is very, very far. Protest is designed to say things that are trying to persuade people, and you're not trying to persuade people when you try to knock them out of their car, when you want to make sure that they can speak, hold classes, move freely, give personal threats and so forth.

There's nothing about the first amendment that justifies extortion, arson, defamation, or whatever it is you want and Intimidation, and people have to understand that free speech means freedom within the same boundaries that other forms of speech are done. Or to put it in another way, you do not have the right to hit somebody, then you don't have the right to threaten to hit somebody.

The threat is a speech, but it's still illegal and should be punished and eliminated.

>> Tom Church: All right, I wanna touch on that, Richard, because it's very clear that on Columbia's campus, especially a private university, even a public one, you're not allowed to protest like that. But I think outside near Colombia, it's up there in New York City, there are widely shared on Twitter and other social media places, a small group of protesters who are masked, who are holding up the Hamas flag signs that say, from Yemen to Gaza, globalize the Intifada.

I mean, arguing for expansion of Hamas and hoping they win. I wanna know a few things. One, should they be allowed to cover their faces? Should you be allowed to chant Death to America? I mean, should you be allowed to tell Jewish passerbys that you hope Hamas wins, that you hope they attack Jews in Israel?

I mean, is this level of intimidation of violation of free speech norms? I really wanna know how far are you allowed to go?

>> Richard A. Epstein: Well, I think they're going too far under this situation. I mean, I think it's perfectly okay for somebody to go and get on a plan and even say things like death to Israel, because unless the danger is going to be imminent, the usual view on this is you let people speak rather than precipitate fight on the other side.

But what you mentioned is they start to intimidate passerby. And now, why is the mask important? Because if you hide your face, it's more likely that you'll threaten somebody else, because they'll be less able to identify who you are and to punish it. So the entire garb, the general rhetoric and so forth, becomes context by which you evaluate the particular incidents with individual people.

And that context makes this much more serious and ominous than would otherwise be. So the answer is, I do not think that they are allowed to do this. It is also the case that you can't disrupt traffic on a sidewalk any more than you can on a public street.

And so for demonstrations of this particular sort, there has to be a permit and there have to be serious restrictions on the time, place, and manner in the way in which these things are done. So if you put all of those things together, what happens is this does, I think, in fact, cross the line.

If what they wanna do is to set up a booth and they get an authority from the authorities, and they wanna hand out all the literature in the world that says these hostile things, I think that's probably permissible, but certainly disreputable. It's only when it turns to the immediate threat of force that it becomes dangerous.

There's a famous case called Brandenburg versus Ohio involving the Ku Klux Klan back in, I think, 1969. It came up, and the imminency test was basically defended by the Supreme Court. It's a bad test to the extent that there's non-imminent danger, which is highly likely to explode. But for ordinary encounters, I think it's probably a pretty serviceable first approximation.

What's happened in this case is behind every one of these particular protests, the masks, the flags, and so forth, is a secure knowledge on the part of everybody that this has been a precursor to violence and other types of situations. And knowing that the people who are directly approached have a right to be fear of themselves, which means that the state has a right to protect them from that kind of fear.

It is a very dangerous thing to try to get so close to the line, which is what Hamas at its best is trying to do. And when they cross the line, what you tell them is, we're gonna punish you in the full. You wanna avoid crossing the line, then back off and don't do the kinds of things that you're talking about here.

And so if you wanna do something, put it on a podcast where people who don't want to listen can turn it off. But once you get in their face and there's an immediate physical interaction, now the danger of serious violent clashes and so forth increases. And you're not allowed to be scot free when you engage in activities which is calculated to provoke either a violent response from your own supporters or a violent response from those people who are nervous that they're about to be attacked.

So I don't think that any of this stuff is protected. Indeed, I mean, the Hamas protesters are like Hamas. They violate every rule dealing with protests. Justice Hamas violates every rule of law when it uses human shields, when it builds tunnels in one form or another, when in fact it doesn't fight in uniform, when it starts to claim that attacks by other people have caused damage to them ehen they've done it themselves.

When they exaggerate tolls of innocent people killed, when, in fact, many of them turn out to be combatants. All's fair and love and war right is not even true about love, and it's certainly not true about war, which is why you have the Geneva conventions and other things, and these are not easily enforceable publicly, cuz there's no public presence.

But if you start to see these violations, every private institution should gravitate in a way which says that those people who violate the norms, which have been sanctified by practice and by UN regulations and by other forms of treaty, those people have to pay a price for their violation.

And that's the thing that Biden does not understand. No sanctions against Hamas and Gaza will lead to a permanent status quo of uneasiness and anxiety. Nothing can be rebuilt, no people can be resettled so long as the only kind of ceasefire you have is one which is not binding and which Hamas could break in a moment.

The only thing that will end that is their destruction. And given what they've done in the past six months and the years before that, it's a fate which is richly deserved. After that is done, my view is you cannot have a two-state solution at this point, because there's no internal governance on the Palestinian side that can form a state.

And so what's gonna happen is the Israelis are gonna have to take over the direct operation with this key caveat. They want to run an army to prevent violence. They want to let the Iranians, not the Iranians, the Palestinians' police themselves to the extent that they can. And so you want to have a local police force, maximum autonomy with respect to entering into visit religious activities and so forth, but no violence.

That has to be the current thing. And every international spas ought to dot that particular position when it comes to the situation. Instead of sounding almost mindless like people like Thomas Friedman said, we want a two-state solution now. There is not the trust on the ground to allow that to happen, nor any kind of infrastructure to make it take place.

At this particular point, what happens is the price that Hamas pays, the price that Abbas pays for being so corrupt with the Palestinian authority. Is that the hope which I share with everybody else is you can have yourself a Palestinian state. It has to be put on hold, because the short-term horrors do not justify that particular solution as an outcome of this particularly brutal and senseless war.

>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. As always, you can learn more if you go over to Richard's column, The Libertarian, which we publish on definingideas@hoover.org. If you found our conversation thought provoking, please share it with your friends and rate the show on any podcasts or community.

For Richard Epstein, I'm Tom Church, I'll talk to you next time.

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