Rush to Judgment: Internet and other mobs, canceling leaders without due process, and the Rule of Law in America
Antisemitism and free speech on campus, and other controversies
Adapted from from The Eighteenth Century Club, December 10, 2023
Amidst the heated controversy surrounding Congressional testimony on free speech and anti-semitism, which has led to the resignation of the President of the University of Pennsylvania, David French has offered a careful and closely reasoned analysis of the issues involved.
See David French, “What the University Presidents Got Right and Wrong About Antisemitic Speech,” New York Times, December 10, 2023 (9:00 a.m. ET),
It bears close reading by everyone.
Republican Congresswoman Elise Stefanik of New York, the Grand Inquisitor of the New Inquisition, leader of the current witch-hunt against all apostates who engage in or tolerate certain forms of “hate speech” (except Donald Trump), fierce MAGA leader and avenger of Trump, set up a theatrical ambush of the presidents of the University of Pennsylvania, Harvard, and M.I.T., who were called to testify before the House Committee on Education and the Workforce on December 5, 2023.
French describes the set-up and confrontation as follows:
To understand what I mean, we have to understand what, exactly, was wrong — and right — with their responses in the now-viral exchange with Representative Elise Stefanik, Republican of New York. The key moment occurred when Stefanik asked whether “calling for the genocide of Jews” would violate school policies. The answers the presidents gave were lawyerly versions of “it depends” or “context matters.”
The very premise of Stefanik’s provocative question is highly dubious, at best. It does not appear that demonstrators at Penn ever called for the genocide of Jews.1
The more we learn about this imbroglio, with the introduction by Stefanik of a resolution in the House condemning the three presidents, the more it looks like a Trumpist operation aimed at furthering Trump’s cultural war against the left.2.
The responses of the presidents were in essence summaries of First Amendment law in the United States.3
But with passions inflamed over developments in the Israel-Gaza war, such nuances were not appreciated by Stefanik and many others. A wealthy donor withdrew or threatened to withdraw a $100 million gift to the Wharton School of the University of Pennsylvania, whose Board expressed its lack of confidence in Ptrsident Elizabeth Magill.
Magill apologized for her testimony, instead of robustly defending and explaining it.
Apologies in such a heated atmosphere are not effective, and may inflame the situation. See Ed West, “‘Never apologise, never explain’ turns out to be right; A new study from Columbia University suggests that public figures who apologise are more likely to seen as needing punishment,” Unherd, October 28, 2019.
Stefanik led the outrage, which led to President Magill’s resignation. Four days after the resignation, Stefanik issued a press release which said, “One down. Two to go.”
This kind of mob action was not new. It had become the modus operandi of the “Me-Too” Movement, which drove many men to resign from public office and other positions under the threat of mass emotions, instead of as the result of careful inquiry into the allegations and resort to due process of law.
Stefanik’s latest triumph reminded one of New York Senator Kirsten Gilliibrand, a Democrat, who led the 1917 campaign which led to the resignation of Al Franken, Minnesota’s outstanding and influential Democratic Senator.
Franken was a comedian who had performed on USO tours over the years, and with Leeann Tweeden, a neophyte comedian, in 2006. On their two-week tour together, they had performed a skit in which as she feigned to be asleep, and Franken reached out and cupped his hands as if he were going to grab her breasts. For the mainly male soldiers for whom they were performing, the skit was hilarious, all a bit of mischievous fun.
But when Tweeden, now a right-wing radio host, went public with a story of alleged sexual harassment by Franken, accompanied by a picture of Franken cupping his hands as if he were going to grab her breasts, some 11 years after the alleged event, Gillibrand led the outcry against the Senator.
Franken resisted calls to resign at first. But eventually, and in response to pressures from Democratic Senators who in their rush to judgment joined the mob demanding his head, he resigned.
So had Gillibrand and her mob brought about the downfall of a great U.S. Senator.
Yet there was even more damage to be wrought. Garrison Keillor, in a Washington Post opinion column highly critical of Donald Trump, had the temerity to also defend Al Franken. Keillor had only recently begun to write this new column for the Post.
Shortly after the column’s publication,, Minnesota Public Radio severed its relationship with Keillor and cut off the archives of Prairie Home Companion and The Writer’s Almanac. They did so, it appears, on the basis of allegations that Keillor had placed his hand under the open shirt and on the back of one of his guests years before. The Post also canceled Keillor’s column.
Leading the “Me-Too” mob, Gillibrand had succeeded in orchestrating the downfall of an outstanding Democratic Senator. Keillor’s fall revealed how dangerous it could be to criticize the rush-to-judgment mob.
Regarding Stefanik, it should be recalled that she campaigned for the ouster of Liz Cheney from the Republican leadership in the House of Representatives. After Cheney was deposed, Stefanik assumed her position. Her outrage at the college presidents’ careful and lawyer-like answers to her baited questions has not been matched by any outrage directed at Donald Trump and his MAGA supporters.4
The “Me-Too” Movement and the other cancellation movements which have been used to drive leaders from positions of power have enjoyed what appeared to be broad public support, though whether that is true is far from established fact.
What is true is that internet mobs have subjected targets to such extreme pressure that they have caved in and resigned without insisting on their rights to due process and an impartial determination of the facts.
Many of the men may have been guilty of what by contemporary standards may be interpreted as sexual harassment, and some may have been and in a number of cases were if fact guilty of outright sexual crimes. Others, like Franken and Keillor may have been innocent.
However, the point here is not that they were innocent or guilty, but rather that the resort to internet and other mobs instead of due process of law has contributed to a weakening of the rule of law in the United States.
As the French aphorist La Rochefoucauld (1613-1680) once wrote, “They want to find those who are guilty, without taking the trouble to investigate the crimes.” (Maxime 267.)5
Stefanik, it should be noted, has not led any internet mobs against Donald Trump, who is notorious for credible allegations of sexual harrassment and abuse, and who indeed has been found liable in a civil case in New York for sexual battery and what amounted to the rape of Jean Carroll in a New York department store.
On Cheney, Franken, and Keillor, see,
1) “Liz Cheney and the Republican ‘Gleichschaltung’,” The Trenchant Observer, May 26, 2021.
2) Absurdo, “Sexual harrassment hysteria and mob justice: Garrison Keillor and Al Franken denied due process,” Absurdarama: Tales of the Absurd in this Mad, Mad World, December 7, 2017.
3) “Sexual harassment allegations and mob justice: Senator Al Franken and Garrison Keillor,” The Trenchant Observer, December 6, 2017.
4) “How Senate Democrats have strengthened Trump: Al Franken and the Democrats' Circular Firing Squad,” The Trenchant Observer, December 8, 2017.
The case of Al Franken is particularly instructive. In 2019 Jane Meyer of The New Yorker did a serious review as an investigative reporter of the allegations against Franken which led to his resignation6 She found that the main allegation by Leeann Tweeden was unsubstantiated and contradicted by direct witnesses of the incident. She found further that the Senators who had joined the bandwagon in calling for Franken’s resignation later regretted their decisions. Franken himself regretted that he had resigned. The other mostly anonymous allegations were unsubstantiated and relatively trivial in nature.
Meyer’s careful reporting demonstrated the enormous harm to outstanding leaders such a rush to judgment can cause. Mob hysteria, it turns out, is a poor substitute for the careful fact-finding and impartial judgments that are the essential ingredients of due process of law. Moreover, due process can help ensure that the punishment fits the crime.
Human beings make mistakes. Sometimes they don’t speak clearly, and even say unpopular things. Yet we don’t want university presidents or other leaders to live in constant fear they may utter a sentence or two that will cost them their jobs.
We want them to be able to resist the winds of popular passions, and to steer their institutions on the best academic course. We want them to be independent of politicians and billionnaires.
Now Elise Stefanik is going after the other two university presidents who testified before her committee. Already there is mounting pressure on Claudine Gay, the president of Harvard University7 Already the zealots are digging up whatever they can find and making strong allegations against Gay in an effort to bring her down.
Elizabeth Magill of Penn and Claudine Gay of Harvard are women of extraordinary accomplishments. Magill served as Dean of Stanford Law School, before assuming the position of Provost at the University of Virginia. Gay served previously as the Dean of the Faculty of Arts and Sciences at Harvard.
While Magill had recently come under criticism at Penn for her handling of free speech issues involving Israel and Palestine, the mob action which led to her resignation was utterly shameful.
Large donors to Penn and its Wharton School reportedly played a key role in forcing her resignation. The tipping point was her response to Stefanik’s questions in an outrageous political ambush. That response was a careful and lawyerly response (Magill is a lawyer, after all!) which succinctly stated the law regarding free speech under the U.S. Constitution.
The pressure on Harvard President Claudine Gay to resign was growing on Sunday and Monday, though she received robust support from professors and the alumni association. Her fate was to be discussed at a previously-scheduled meeting of the Harvard Corporation on Monday night, December 11.
MIT President Sally Kornbluth is also reportedly under pressure. She has avoided the major mistake made by Magill and Gay, which was to offer an apology instead of a robust defense of and explanation of their testimony.
The Rush to Judgment crowd, exemplified by Stefanik’s drive to force the presidents of Penn, Harvard, and M.I.T. to resign, undermine the Rule of Law by encouraging mob attacks and emotional decisions as part of political combat. Bypassing due process in this manner violates the basic tenets of democracy, which include reaching political decisions in accordance with established procedures and the Rule of Law.
Presidents Magill, Gay, and Kornbluh, far from being ostracized for their thoughtful and reasoned responses to Elise Stefanik’s provocative questions, put to them in a bad-faith ambush not aimed at getting at the truth, should be highly praised for giving precisely the kind of thoughtful answers we should expect from presidents of leading universities.
The mistake of Magill and Gay, amid the tumult of this artificially generated controversy, was to apologize for their statements instead of robustly defending and explaining them. Kornbluh has not apologized, nor should she. Nor should Magill or Gay make any further apologies.
The issues surrounding freedom of expression, antisemitism, and Diversity, Equity, and Inclusion (DEI) policies need to be thoughtfully addressed not only at leading universities like Penn, Harvard, and M.I.T. but at all colleges and universities in the country.. Following established policies, due process, and the Rule of law, these issues need to be considered in a thoughtful and orderly manner.
There should be no place for those who try to bring down leaders of extraordinary achievement and potential through political theater and the action of internet and other mobs. Particularly at times of heated political passions, such mob action must be avoided.
Democracy is the product of a democratic culture as well as that of a set of laws and procedures for the governance of a town, a state, or a country.
The whole purpose of democracy and the rule of law is to prevent mob rule. We must take care to nurture our democratic values and culture in all spheres of public and private life, including the firing of university presidents.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See, e.g.,
1)Ciara O’Rourke, ”Video shows University of Pennsylvania students chanting, ‘We want Jewish genocide’: No, UPenn rally did not call for ‘Jewish genocide’”,POLITIFACT, October 24, 2023.
2)(UPDATE AND OVERVIEW) Robert Tait, ”What’s behind the antisemitism furor over college presidents’ testimony?; Backlash against presidents of Harvard, UPenn and MIT has led to one resignation and implications for free speech on campus,” The Telegraph, December 12, 2023 14.07 GMT).
See Elise Stefanik, Press Release, “Introduce Bipartisan Resolution Condemning Antisemitism on University Campuses and Committee Testimony from Penn, Harvard, & MIT Presidents,” December 12, 2023.
See, e.g., Charles Fried, “President Gay Was Right: Context Matters,” The Harvard Crimson, December 11, 2023.
See Shannon Larson, “Congressman Jamie Raskin slams fellow Harvard alum Elise Stefanik over antisemitism questioning,” Boston Globe, December 11, 2023 (updated 1:58 pm).
“La prmptitude à croire le mal sans l’avoir assez examiné est un effet de l’orgueil et de la paresse. On veux trouver des coupables; et on ne veut pas se donner la peine d’examiner les crimes.” Maxime 267. La Rochefoucauld, Réflections ou Sentences et Maximes morales, (Le Livre de Poche), Librairie Générale Française, 1991.
See Jane Meyer, “The Case of Al Franken,” The New Yorker, July 22, 2019.
Eva Rothenberg, “Harvard Alumni Association ‘unanimously and unequivocally’ supports Claudine Gay,” CNN.com December 11, 2023 (Updated 7:12 pm EST).
UPDATE:
The Harvard Corporation expressed support for Claudine Gay on December 11.
For a critical view of President Gay’s qualifications and tenure in office, see Jason L. Riley, “Why Harvard Can’t Fire Claudine Gay: To admit she has performed poorly is to raise basic questions about the entire ‘diversity’ enterprise,” Wall Street Journal, December 19, 2023 (6:29 pm ET). Riley argues that Gay was chosen because of her race and DEI work, and that she fails to match the qualifications of her predecessors.
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