Public University Requires Extra Security . . .
lweinberg at mail.law.utexas.edu
lweinberg at mail.law.utexas.edu
Sat Mar 20 08:46:16 PST 2004
March 20, 2004
A propos of your posting to the list, which is at the tail end of
this message, I was forwarded the following story by a colleague. (I have
no idea whether the story was simply posted to a list or published
somewhere). Constitutional question: The police seem to have behaved
reasonably well, but it occurs to me that they might be under little if any
constitutional (as opposed to statutory or commonlaw) duty to do so. My
impression from DeShaney, Morrison, etc., is that any indifference to the
safety of the victim on the part of the police or other governmental agency
need only be negligent rather than intentional to insulate the officers at
least from liability in damages ~ as long as they have not established some
custodial or other relationship with a victim that would generate a duty to
safeguard. Am I wrong about this? I am unclear what the application of
such rules would be in equity, if any. But if these understandings are
about right, what are the duties of the public university toward guests of
student groups speaking at the university?
>>Bigotry outside Faneuil Hall
>>By Alan Dershowitz March 5, 2004
>>The other day, I experienced violent anti-Semitism for the first time
>>in my adult life. It took place in front of Faneuil Hall, the birthplace
>>of American independence and liberty.
>>I was receiving a justice award from the Jewish Council on Public
>>Affairs and delivering a talk on "Civil Liberties in the Age of
>>Terrorism" from the podium of that historic hall. When I left, award
>>in hand, I was accosted by a group of screaming, angry young
>>men and women carrying virulently anti-Israel signs. The protest
>>was denominated a peace event and was sponsored by a group
>>calling themselves by the vague name ACT-MA. Their website
>>describes them as promoting peace and justice and associated
>>with larger solidarity organizations, but there was nothing peaceful
>>or just about this protest.
>>Although the si! gns they were carrying were not anti-Semitic, the
>>sign carriers were shouting epithets at me that crossed the line
>>from civility to bigotry. "Dershowitz and Hitler, just the same, the
>>only difference is the name." The sin that, in the opinion of the
>>screamers, warranted this comparison between me and the man
>>who murdered dozens of my family members was my support for
>>Israel. It was irrelevant to these chanters that I also support a
>>Palestinian state, the end of the Israeli occupation and the
>>dismantling of most of the settlements. They also shouted
>>"Dershowitz and Gibbels [sic], just the same, the only difference is
>>the name" - not even knowing how to pronounce the name of the
>>anti-Semitic Nazi propagandist.
>>One sign carrier shouted that Jews who support Israel are worse
>>than Nazis. Another demanded that I be tortured and killed. It
>>wasn't only their words; it was the hatred in their eyes. If a dozen
>>Boston police were not protecting me, I have little doubt I would
>>have been physically attacked. Their eyes were ablaze with
>>The feminist writer Phyllis Chesler aptly described the hatred often
>>directed against Israel and supporters of the Jewish state by some
>>young people as eroticized. That is what I saw: passionate hatred,
>>ecstatic hatred, orgasmic hatred. It was beyond mere differences of
>>opinion. When I looked into their faces, I could imagine young
>>Nazis in the 1930s in Hitler's Germany. They had no doubt that
>>they were right and that I was pure evil for my support of the
>>Jewish state, despite my public disagreement with some of Israel's
>>policies and despite my support for Palestinian statehood. There
>>was no place for nuance here. It was black and white, good versus
>>evil, and any Jew who supported Israel was pure evil, deserving of
>>torture, violence, and whatever fate Hitler and Goebbels deserved.
>>I do not believe that criticism of Israel, or even of Zionism, is
>>tantamount to anti-Semitism and I have so written over the years.
>>But what happened in front of Faneuil Hall went beyond criticism.
>>To be sure, it was constitutionally protected speech, just as the
>>Nazi march through Skokie was constitutionally protected speech.
>>But the shouting was plainly calculated to intimidate. An aura of
>>violence was in the air, and had the police not been there, I would
>>not have been able to express any views counter to theirs.
>>As it turned out, I was not actually able to express any of my
>>opinions, even in response to their outrageous mischaracterization
>>of my views or their comparisons of me to the most evil men in the
>>world. When I turned to answer one of the bigoted chants, the
>>police officer in charge gently but firmly insisted that I walk directly
>>to my car and not engage them. It was an order, reasonably
>>calculated to assure my safety, and it was right. The officer got into
>>my car with me and only got out a few blocks away. The
>>intimidation had succeeded. I was silenced, and their horrible
>>message went unanswered in the plaza near Faneuil Hall.
>>That is not the way the marketplace of ideas is supposed to work. It
>>is not the conception of liberty for which Sam and John Adams
>>spoke so eloquently and controversially in and around Faneuil
>>Hall more than two hundred years ago. It was far more reminiscent
>>of rallies conducted by Nazi thugs in Berlin seventy years ago.
>>I will not be silenced nor intimidated. The shouters know that. Their
>>goal is to silence and intimidate others, who do not get police
>>protection and do not have access to the media. Let the debate
>>about Israel and the Palestinians continue unabated. Let all views
>>be heard. The shouters in front of Faneuil Hall wanted no views
>>but their own to be seen and heard. They succeeded that day in
>>front of Faneuil Hall, as they have on some university campuses,
>>but the marketplace of ideas is far too vibran! t to be shut down by a
>>bunch of self-righteous thugs shouting ugly and bigoted epithets.
At 10:26 PM 3/19/04, you wrote:
> From this blog post,
>I learn that a student group at Virginia Commonwealth University has
>invited Daniel Pipes, a pro-Israel speaker who is the center of numerous
>controversies, including allegations (false, in my view) that he is
>"anti-Muslim" to speak, and that the University is requiring that the
>group raise extra money to pay for extra security. On further
>correspondence with the author of the post, I learn that VCU requires all
>student organizations to provide security if the event warrants it, like a
>dance. Question: Is it constitutionally permissible for a public
>university like VCU to require a student group to spend extra money on
>security for a controversial speaker, or does this situation fall within
>the USSC cases that forbid the government from requiring the KKK, parade
>organizers, etc, from posting bonds, paying for their own security,
>etc.? On its face, it's sounds very fishy to me that if Muslim and
>pro-Palestinian students disrupt pro-Israel speakers, the pro-Israel
>groups get taxed for it.
>Professor David E. Bernstein
>George Mason University School of Law
>My latest book, You Can't Say That!
>The Growing Threat to Civil Liberties
>from Antidiscrimination Laws, has just
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