‘A New McCarthyism’ Is How Free Speech Advocates Label Congress’ Probe of Campus and Labor Antisemitism

A congressional subpoena of a labor union that passed an anti-Israel resolution is raising First Amendment concerns among critics who say it’s not the job of the legislature to police the way private organizations discuss the war in the Middle East. The House Education and Workforce Committee is demanding records from the Association of Legal Aid Attorneys, a union of 3,000 public defenders and legal employees at New York City. Its members were “alienated,” the committee said in a letter last week, after 35 percent of the union’s 1,637 voters opposed a resolution calling for a “cease-fire in Gaza, an end to the Israeli occupation of Palestine, and support for workers’ political speech.”This investigation into the legal aid lawyers comes amid a crackdown by the committee on antisemitism at elite college campuses. The chairwoman, Congresswoman Virginia Foxx, launched probes into Harvard, MIT, and Penn over the issue after the schools’ presidents testified before the House in December. Columbia’s president, Minouche Shafik, declined the invitation to testify, citing a scheduling conflict, but she has since been hit with a subpoena from Ms. Foxx demanding her appearance on April 17. “Requiring members of a private organization to answer before Congress for controversial views expressed in internal emails,” the legal director of the Foundation for Individual Rights and Expression, Will Creeley, tells the Sun, “chills the exercise of First Amendment rights.” According to messages published by the Free Press last week, some members of the ALAA accused Israel of “genocide,” “ethnic cleansing,” and “apartheid.” Co-workers who defended Israel in a group chat were called “fascist,” “deranged,” and “mentally disturbed.” Yet Mr. Creeley explains that “anti-Israel speech that does not fall into one of the narrow, carefully defined categorical exceptions to the First Amendment — true threats, for example, or incitement — and is protected by the First Amendment.”The committee says it does not seek to regulate the union’s political activity, but rather to ensure that union members are aware of their First Amendment rights to withhold the portion of dues used for political activity if they disagree with resolutions passed by the union. The Supreme Court ruled as such in a 1988 case, Communications Workers of America v. Beck.The committee’s argument, though, could simply be a pretext for a subpoena, a professor of labor and employment relations at the University of Illinois College of Law, Michael LeRoy, tells the Sun. “This is about engaging in a current version of McCarthyism that’s directed at a controversial message on the left,” he says. The House’s investigation represents, to him, “a misuse of congressional power.”Congress draws its authority to scrutinize labor unions from the power granted to Congress in the Constitution to regulate interstate commerce. Yet governmental investigations must take place within the parameters of the Bill of Rights. Unions have strong First Amendment rights — regardless of what kind political views they are espousing. Ms. Foxx’s investigation presents “an alarming degree of government intrusion into the free speech rights of a private organization,” the New York Times’s Michelle Goldberg argues in a recent opinion article. She compares the crackdown on anti-Israel speech to an investigative agency, the House Un-American Activities Committee. Created in 1938, it wielded its subpoena power to convene high-profile hearings involving suspected communists thought to be endangering American national security. Individuals called upon by the committee during what came to be known as the McCarthy Hearings could escape testifying by invoking their right to avoid self-incrimination under the Fifth Amendment. Those who refused to cooperate appeared guilty and were put at risk of losing their jobs. Critics said that the suspected communists were targeted for exercising their right to free speech because many of them had not broken any laws.It’s also difficult to dodge the House Education Committee’s scrutiny. If the labor union refuses the subpoena, it can be charged with contempt of Congress. A former White House aide to President Trump, Peter Navarro, reported to federal prison on Tuesday for refusing to comply with a subpoena from the House Select Committee that investigated the January 6 attack on the Capitol. Those who do show up before the House committee might face a barrage of criticism on social media and eventually lose their jobs, as was the case with the presidents of Penn and Harvard after their disastrous testimonies in December. “That’s the ultimate chilling effect,” Mr. LeRoy says. He speculates that the committee’s probes into antisemitism are unlikely to produce legislation on the issue and “could be weaponized on the left or the right.”The problem is that the movement to root out antisemitism appears to be politically selective, Mr. LeRoy argues. “I’m unaware of any effort to subpoena right-wing hate groups that are on online spaces harassing Jewish people,” he says. He says this movement mirrors efforts to ban politically contentious books and discussions of diversity, equity, and inclusion at schools across the country. These free speech concerns might ultimately be battled out in the court of law just as they have been in the court of public opinion. Professors at the University of Pennsylvania sued their school last week for allegedly suppressing speech that was critical of Israel. They argue that accusations of antisemitism constitute “a new McCarthyism.”Fears are growing that abridging academic freedom could invite a host of legal troubles on both sides. “I would expect lawsuits to come out of efforts in Florida and Alabama to silence professors on the left,” Mr. LeRoy says. “And I would expect efforts on behalf of faculty on the right who are punished for their speech to eventually litigate their claims.”

‘A New McCarthyism’ Is How Free Speech Advocates Label Congress’ Probe of Campus and Labor Antisemitism

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