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Delivering Community Power CUPW 2022-2023

A lawyer’s perspective on the pro-Palestine encampments

Liberal law purports to give everyone the right to think what they like. Capitalism makes sure that this goal is always elusive

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Pro-Palestine encampment on the grounds of McGill University, Montréal. Photo courtesy Ellen Gabriel/X.

A trite observation:

One of the striking aspects of the fuss about pro-Palestine campaigns on university campuses is that, while the political arguments and those in mainstream media rage around free speech and its limitations, its relation to hate speech, and the special role assigned to universities in respect of all these debates, the legal responses focus on the physical aspects of the protesters’ presence.

The legal fights revolve around these questions:

Even if students have a legal right to be on the premises, is that right lost when non-students swell their ranks? Does this transform their right to be there as invitees to those of trespassers, from people who have a right to be there to people whose presence has become unlawful?

Does the student’s’ clogging up of entrances, passageways and the like, abuse their right to be on the premises because this kind of physical presence denies the right of others to be physically present on the same premises?

Do the lengthy stays on campus, involving the establishment of physical structures not normally there (tents in open, walking and loitering spaces), create physical hazards, such as possible fires and damage to university property or to the health and safety of encamped students which (the caring) universities feel they have a need to protect?

Does the sight of a collectivized group with a set of emphatically expressed controversial opinions make other people with other views, who also have a right to be on the same premises, feel intimidated and instill a reasonable fear in them for their physical safety?

These questions anchor the kind of arguments that university administrators muster when they call the police to evict protesting anti-Zionist students. They never say that these students do not have the right to hold or promote the controversial views they have formed. Indeed, as universities, they often contend that they uphold the right of one and all to think what they like, say what they like. They do not say that it bothers them that their students, whose freedom of thought and willingness to criticize the status quo are frequently said to be the very things universities nurture and nourish, are arguing that the universities’ investments involve them in immoral practices. Our universities are spear carriers for freedom of speech and thought and it would be unseemly to attack their own students who walk the university talk.

What the universities must rely on is the argument that it is their property rights which are being abused. This is why they must show that they have rules and protocols about what the permitted use of their property is. They must show that all concerned know such limits to be in place and that they must know that these standards of behaviour are threatened by the encampments. The life and death issues of the Israel-Gaza conflict, the fact that some other people on campus have different views, or that the university investments are being challenged, cannot be raised by universities as they react aggressively toward the protesters on their land. They must show threats to the agreed-upon uses of the premises and/or some of its non-protesting members. In the McGill case, the university’s efforts to get the law on side have failed thus far because it was found that the university had not factually established either property abuse or physical dangers to any one person to whom it owed a duty of care. But that will not always be the case because physical presence in a volatile, inflammatory, tension-filled political setting may well lead to some physical harms (to property or persons) which might give the universities the right to clamp down on political action, on freedom of speech.

How different it is on the other side of the fence!

There are many people, of course, who think that the protesting students are wrong on every count. They believe them to be ill-informed or, worse, antisemitic and to be exploiting the dramatic events in Gaza to give muscle to their racist prejudices. There are others who see the protests as a menace to Israel because it might influence our governments to diminish their support for Israel. The encampments at universities are particularly worrying to these people because the highly visible collectives of articulate students at respected and prestigious universities which, by their inaction, could be seen to condone the students’ protests, might erode public and government support for the Zionist project.

Fortunately for them, if they are wealthy, they have an effective tool. Unlike the universities who invite people onto their property, the rich can use their property rights as unfettered rights. They do not have to justify their use of their property in any way. They do not have to sit in, to suffer any discomforts, to sleep in tents, share a few washrooms, and so on. They can stay in their homes. Indeed, they do not even have to state their views in public. They can have their views heard and listened-to without being subject to scrutiny. Their right to speak freely is unimpeded, robust and legal. They can express themselves effectively and legally, without needing permission from anyone, all without leaving the couch. And they remain hidden, unlike the students who must be in plain sight and run the risks that come with that. All the rich need is a telephone and a bank book.

Those with wealth to spare and who have these negative views of pro-Palestine or anti-Zionist activists often have acted as benefactors to universities which deliver results they like. They merely have to let universities know that this generosity might dry up if they do not find a way to still these protests. Research grants, seed money for buildings, funding programmes will have to be curtailed if they do not do what they are told. Universities have been taught to get and to respect advice and messages from private funders as they have come to rely on private fundraising. This is too well-known to warrant elaboration. Yves Engler and Judy Haiven have documented the extent of the pressures exerted by donors who support Israel’s cause in Canada.

Recently, it has been the focus of much discussion in the United States where presidents of major universities have been forced to resign or to cave in as some of these heavy-hitting funders expressed their dismay at these universities’ failure to stamp out what they saw as the antisemitic, anti-Israel speech and actions on campuses to which they had been generous contributors.

Underlying the political discourse and heated debates around the campus sit-ins, then, lies an old verity. In capitalism, the golden rule is that they who own the gold rule.

The use of wealth to achieve one’s political goals is never considered coercive. This is the key to the legally accepted oppression of employer-employee relationships. Because the employers, by definition, have disposable wealth and the worker must work for such a person to survive, the terms and conditions of any agreement will favour the employers. The disparity in wealth leads to coerced terms and conditions. This is legally acceptable. Workers are forced to combine, to form unions, to offset this legitimated coercion. This is always seen as a privilege whenever it is allowed and it is always limited by law.

So, it is with the two sets of clashing people speaking at and to universities. Those with property may threaten to use their wealth coercively. They can do so as individuals and do not need any outside support to be effective. Those without wealth must have permission to occupy the premises, something they need to do to speak effectively. More, they must be seen to combine to make that speech effective. They are in continuous danger of their limited privilege to use another’s property (the university’s) removed. This is the same reasoning which forces organizers of demonstrations to ask for permission to demonstrate from local authorities charged with protecting private property.

The message is clear: it is the sacrosanct rights given to the owners of property, of capital, which allows them to speak as they like. Non-property owners must show they do not interfere with those sacrosanct rights if they want to speak. Non-property owners must speak out in public and risk the dangers of being where they should not be, saying things in a way that easily can be characterized as prohibited speech (“From the river to the sea”) and have their noise and collective presence typed as intimidating, potentially criminally intimidating. Property owners can stay out of sight, intimidate others (here universities) into intimidating the real targets (pro-Palestinians) and be intent on maligning them, never violating any law or convention.

Liberal law purports to give everyone the right to think what they like, say what they like. Capitalism makes sure that this admirable goal can never be fully attained. John Galsworthy, writing in the The Forsyte Saga, captured this very nicely: “If a man had money, he was free in law and fact, and if he had no money he was free in law and not in fact.”

Harry Glasbeek is professor emeritus and Senior Scholar of Osgoode Hall Law School, York University. He has taught in both Australia and Canada and has written 140 articles and 12 books, including Between the Lines titles Wealth by Stealth: Corporate Crime, Corporate Law, and the Perversion of Democracy, Class Privilege: How Law Shelters Shareholders and Coddles Capitalism, and Capitalism: A Crime Story. He lives in Toronto, Ontario.

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