Harvey Silverglate

This piece was originally published by WGBH

The world beyond the ivory tower is gradually learning the startling truth about the extent to which intellectual rot afflicts the academy. Students have earned the derogatory moniker “snow flakes” and need to be “coddled” rather than merely lightly supervised. Their excessive need for “safe spaces” has infected not only residential life but also the rigor of their academic programs

But none of the bad news emanating from our colleges in general or Harvard College in particular prepares one for the realization that the dis-invitation craze has finally hit Harvard Law School. And, mirabile dictu, the censorship craze infecting higher education has spread from the area of gender combat into the more esoteric arena of international politics and historical interpretation

Dis-invitations, or the withdrawal under pressure of speaking and teaching invitations previously extended to controversial scholars, have become symbolic of the censorious character of these dolorous times for freedom of speech and thought on campuses around the country. But the recent action of the Harvard Law students who make up the governing board of the Law School’s longtime premier free speech organization, in withdrawing its invitation to a lawyer (a prominent alumnus, alas) who was going to deliver a lecture on the beleaguered rule of law in the age of Trump, produces a particularly high level of irony and concern. (We are talking, after all, not only about Harvard, but about its law school.)

We must start at the beginning in order to get the full flavor of this latest catastrophe for freedom of thought and speech in academia

On January 28th, Radhika Bora, a member of the Harvard Law School Forum, invited Washington, D.C.-based Attorney Bruce Fein to address the Forum on a subject of his choosing. Ms. Bora sweetened the invitation by invoking the names of some of the Forum’s illustrious past speakers: Thurgood Marshall, Martin Luther King, Jr., and Keith Ellison. “Your presence would be a valuable contribution to the Forum’s dialogue on today’s political and cultural climate,” she concluded

Fein, an expert on constitutional law who is not known for ever being at a loss for words, accepted the invitation a mere 23 minutes after Ms. Bora sent her emailed invite. Within two days she was able to advise him of his travel and hotel reservations. But, one day later, Bora sent Fein an unexpected, ominous-sounding inquiry that bore no obvious relationship to the topic of his proposed lecture. “What are your views,” Ms. Bora asked Mr. Fein, “as to the historical accuracy of the claim that an Armenian genocide occurred after the First World War

Fein should have recognized immediately the import of the question. He and others who have studied, written, and litigated about the historical and legal controversy over the “Armenian Genocide” have learned that the debate is more of a war than a routine scholarly, historical, or legal debate. A certain tyranny governs this whole area of historical inquiry on both sides of the divide. Armenians and their supporters claim that Ottoman Turkish forces, in the waning days of World War I, committed Genocide against their Armenian neighbors. Turkey and its supporters, while generally admitting that there was large-scale killing of Armenians, deny that the conflict rose to the United Nations’ technical legal definition of “genocide” – the attempt to wipe out an entire ethnic or national community on the basis of ethnicity or nationality and for no other reason sanctioned by the laws of war. The debate remains bitter to this day, with neither the Armenians nor the Turks giving any quarter

Fein, from his vantage point of lawyer and scholar, takes the position that the slaughter of the Armenians, while ghastly, does not rise to the legal definition of “genocide.” He has written on the subject and has even provided expert evidence, and legal representation, to groups seeking to rebut accusations of an Armenian Genocide. (Disclosure: I represented a Turkish-American association, two Massachusetts public school teachers, and a public school student in one of those court battles. Bruce Fein consulted on that case.) Aside from sensitivity to the verdict of history, both sides of the controversy recognize a practical aspect to the dispute, since victims of genocide under international law are entitled to seek reparations from the victimizers. Hence, for Turkey and Armenia there is money as well as the verdict of history at stake

Fein took seriously Bora’s unusual level of interest in the Armenian Genocide question, noteworthy because this was not to be the subject of his Forum lecture. Either she, or someone else within the Forum’s leadership who had decision-making authority to issue (or, apparently, to withdraw) invitations to speakers, obviously knew of his legal work and his views on the accusation of genocide lodged against the Ottoman Turks. (To cite Bob Dylan’s immortal phrase, one did not need to be a weatherman to know which way the wind was blowing.)

Fein explained to Bora the nature, nuances and historical basis of his views on the Armenian Genocide question, but it was, predictably, to no avail. Facts do not much matter when someone in Fein’s position is being accused, in effect, of being an apologist for, rather than a scholar of, genocide. The “denier’s” invocation of facts does not assuage the mind-set of the accuser

On February 6th, Fein received an email from Bora stating: “I regret to inform you that the Board of the Harvard Law School Forum must retract its invitation to speak at the Forum this spring. Unfortunately, the rest of the Board is not comfortable with inviting you to speak this spring as it appears our views on the Ottoman action against Armenians after World War I diverge slightly from yours”

Twelve days later, Fein wrote a letter to Law School Dean John F. Manning. He sent Manning the email exchanges leading up to the Forum’s dis-invitation. Fein pointed out to Dean Manning, as he had earlier pointed out to Bora, that members of the Harvard community “enjoy a First Amendment right to boycott persons who are unpersuaded that the treatment of Armenians by the Ottoman Empire in World War I can be characterized as genocide within the meaning of the Genocide Convention.” He said that he would like the opportunity to “debate the issue,” although he recognized the Forum’s “Board’s right to censor.” (In a subsequent letter to the president of the Forum, Fein invited board members to defend their disinvitation in a debate at the National Press Club in Washington, D.C. It remains to be seen whether members will accept the invitation.)

At a private university like Harvard, the powers-that-be do have the legal right to censor, since non-governmental bodies, such as private universities, are not obligated to honor the First Amendment’s protections for free speech. It was this legal nicety that Fein had the grace to concede in his letter to Dean Manning. But Fein’s grace was followed by a stinging, and wholly appropriate, rebuke of the culture that has seemingly taken over the Law School

“I suggest that you may wish to consider examining Harvard Law School’s free speech instruction or precepts based upon my encounter with the HLSF Board’s censorship. I would be profoundly saddened if Harvard Law School ever graduated students philosophically aligned with Spanish Grand Inquisitor Tomas de Torquemada or the Pope’s Index of Forbidden Books.”

Ouch

Cambridge-based lawyer Harvey Silverglate writes the WGBH News Freedom Watch column. His research assistant, Nathan McGuire, helped in the preparation of this piece.