Emory Panel Calls Flyers ‘Protected Political Speech’

A committee of the Emory University Senate has concluded that aside from the improper posting of mock eviction notices by pro-Palestinian students, “the rest of the flyer is fully protected political speech under the Open Expression Policy.”

The chair of the Standing Committee for Open Expression, Emory Law professor Alexander “Sasha” Volokh, said that contrary to some published accounts, its April 15 report did not judge whether the content of the notices was anti-Semitic.

“Anyone saying that this committee determined that the flyers were not anti-Semitic, they are saying this with no basis, in our opinion,” Volokh told the Atlanta Jewish Times. “We concluded that there was no aspect of the content of the flyers that violated any section of the policy.”

The committee did acknowledge that, “It is true that some definitions of anti-Semitism encompass more than explicit expression of animus toward Jews.” The Open Expression Policy makes no specific reference to anti-Semitism.

As to whether there is reason to impose “harsh penalties” sought by some in the Jewish community against the Emory Students for Justice in Palestine, whose members posted the flyers, the committee said, “We think there is not.”

The 11-member committee, whose role is advisory, is comprised of university students, faculty and staff. The committee “exists to promote and protect the rights to open expression, dissent and protest among Emory Community members.”

The flyers were posted April 2 on dormitory doors and at an off-campus residence as part of Israel Apartheid Week, which coincided with Emory Israel Week. The flyers warned that the premises were scheduled for demolition in three days and referred to the forced evictions of Palestinians as part of a campaign of “Judaization” in territories controlled by Israel since the June 1967 war.

A disclaimer at the bottom advised that the notices were not real and were “intended to draw attention to the reality that Palestinians confront on a regular basis.”

The committee expressed concern that “some residents (for instance, students with limited English skills) might have been legitimately confused about whether the flyer was an actual eviction notice.”

In addition, the committee cited reporting from various sources, including the AJT, that Jewish students alone were not targeted. According to Hillel International, 17 percent of Emory’s undergraduate students and 10 percent of its graduate students are Jewish.

“We do not know whether the motives of those who wrote or distributed the flyers were anti-Semitic; clearly, different readers’ perceptions differ on this point. In any event, it is the objective content of the flyers that matters, not the speakers’ or distributors’ subjective motives,” the committee said.

That the notices bore the stamp of the Emory Residence Life office “should not be interpreted as endorsement of the particular message, but it is possible that such a stamp might have inadvertently contributed to some residents’ confusion,” the committee said. The flyers were ordered removed because university policy bars placing them on dormitory doors without the residents’ permission.

“But it is exceedingly unlikely that the members of ESJP who posted the flyers intended to make anyone believe that their apartments would actually be destroyed: not only is there the disclaimer at the bottom, but the effectiveness of their political message depends on people realizing that the message is really about Palestine,” the committee said.

In a reply to the committee, the Southeast regional office of the Anti-Defamation League said, “We disagree on this point. In the context of criminal and tort law, motive, intent, knowledge or foreseeability are in most cases relevant to the severity of punishment or culpability.”

“So for example, according to the opinion’s rationale posting flyers on residence doors based on a motive to solicit student attendance at a free, campus performance of “Dear Evan Hansen” should receive the same punishment as posting flyers with the motive or intent to do some form of harm, or done with the knowledge or foreseeability that such a result would occur,” the ADL said.

As a private institution, Emory University is not bound by the free speech provisions of the First Amendment to the U.S. Constitution, but uses “First Amendment-like” standards as the basis of its Open Expression Policy, said Volokh, who teaches constitutional law.

Both the Hillel chapter on Emory’s campus and a coalition of Jewish communal organizations in Atlanta had urged punishment for the ESJP.

While not recommending sanctions, the committee said that any punishment should relate to violation of the rules on posting flyers, not their content.

“If we condoned punishing ESJP because of the content of the flyers, the next, inevitable step would be calls to punish some pro-Israel organization because of its speech. … The content-neutrality that allows ESJP to sharply criticize Israeli government policy is the same content-neutrality that allows Emory’s pro-Israel organizations to sharply criticize the Palestinian Authority and Hamas,” the committee said.

“The recent events on our campus, as difficult as they have been, have given rise to important new dialogue and to concrete planning for next steps on our part, including community education, conversations, and the involvement of experts from within and outside Emory,” said Nancy Seideman, vice president of academic communications.

Those conversations began before the academic year ended. On April 24, students representing pro-Israel and pro-Palestinian viewpoints discussed the mock-eviction notices and wider issues before an audience of about 120 students.