Israel and the Free Speech Problem

Did a Palestinian rights advocate get "canceled" in Canada? Maybe, but the story also shows the limits of right-of-center "cancel culture"

With remarkable timing, the question of whether there is a “cancel culture” targeting critics of Israel in North America came up for a new round of debate just before the latest eruption of Israeli-Palestinian violence and the ensuing barrage of anti-Israel rhetoric.

Earlier this month, there was a flurry of reports on the controversy at the University of Toronto over the aborted hiring of German international law practitioner and scholar Valentina Azarova as director of the International Human Rights Program at the U of T law school. The job offer was withdrawn shortly after a major U of T donor and alumnus, tax judge David Spiro, voiced concern about Azarova’s anti-Israel advocacy to an administrator. The university claims the decision to end talks with Azarova was unrelated to Spiro’s comments or any other outside pressure. Nonetheless, the Canadian Association of University Teachers, the national umbrella group representing some 70,000 academics at 120 schools across Canada, voted late last month to hit U of T with a formal censure. That means academics are asked, though not required, to boycott the school—refuse to accept appointments or speaking engagements—until the matter is resolved to CAUT’s satisfaction.

Not for the first time, defenders of free speech against the intolerant left have been accused of hypocrisy on the subject.

New Yorker columnist Masha Gessen, who has written on a wide range of human rights issues, investigated the story and concluded that Azarova’s treatment is a dramatic example of a “Palestine exception to free speech” in North American universities.

Meanwhile, in an essay in Canada’s National Post, Michael Mostyn, CEO of B’nai Brith Canada, asserts that it’s the other side—Azarova’s defenders who are pushing a boycott to pressure the university—that is undermining academic freedom.

As often happens in these situations, the devil is in the details; and in conflicting narratives. U of T’s official explanation is that the informal offer to Azarova was withdrawn because she could not have gotten a work visa in time to start in her position and could not have worked long-distance during the first semester. (The job had been vacant since 2019.)

A report issued in March by retired Canadian Supreme Court Justice Thomas A. Cromwell, who had been commissioned to look into allegations that Azarova was improperly denied the post because of outside interference, acknowledges Spiro’s comments but does not see them as improper pressure. (While an article in The Forward by Toronto-based reporter Jeremy Appel claims Spiro “called an assistant vice president on Sept. 4, 2020, to suggest Azarova not be hired,” this is factually incorrect; his comments were made during a scheduled call to him from the assistant vice president as part of outreach to alumni donors.)

According to the report, “the Alumnus simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University”—something that, Cromwell adds, a look at Azarova’s work should have demonstrated anyway. However, the report also concludes that the decision to terminate negotiations with Azarova was based on visa and employment issues, not pressure from Spiro or concerns about backlash from the Jewish community.

Critics including Gessen find this conclusion baffling and argue that the report simply accepts the university administration’s spin at face value. In the Forward article, Appel also suggests that Cromwell may have had a conflict of interest: while preparing the report, he gave the keynote address at a legal conference co-sponsored by the Centre for Israel and Jewish Affairs (CIJA), which had campaigned against Azarova’s hiring. It was a CIJA email attacking her as a “major anti-Israel activist”—and urging “quiet discussion” to persuade the university to reconsider—that had alerted Spiro to Azarova’s pending appointment. Others say that Cromwell is a highly respected professional and that the conference is an annual event attended by a wide range of jurists and other figures.

Sorting out these details is a challenging task. For instance, Mostyn notes in The National Post that “the job posting required applicants to be ‘licensed to practice’ law, preferably in Ontario, which Azarova was not.” The university has also argued that since the job is managerial and not academic, no violation of academic freedom occurred in any case.

Gessen’s argument rests on the assumption that the timing of the withdrawn offer—just days after the conversation with Spiro—is simply too suspicious to be a coincidence. However, the article does not mention the detailed explanation offered in the Cromwell report: that around the same time, potential legal issues with Azarova’s employment were brought up by German lawyers in discussions with the university. (U of T had expected Azarova to start as an independent contractor prior to receiving a work visa, but it turned out that such an arrangement would probably be illegal.) Nor does Gessen mention that according to the report, Spiro declined a request from a CIJA staffer to approach the law school dean about Azarova’s appointment because he felt it would be “inappropriate.”

Thus, both Gessen and Appel downplay details that support the university’s version of events. Yet the people on the other side tend to make a rather contradictory argument that seemingly boils down to: “Azarova wasn’t nixed by U of T because of her writings and activism on Israel and Palestinians—but she should have been.” Here’s Mostyn in a B’nai Brith statement welcoming the Cromwell report:

We maintain that Dr. Azarova would have been an entirely unsuitable appointment. The director of an international human rights program at a law faculty should not be exclusively and relentlessly advocating on one side of a complex controversy. Her appointment would have alienated Jewish law students and professors, or anyone who in any way supported Israel, and contributed to a discriminatory and unsafe environment at the law school. The problematic academic record and activism of Dr. Azarova needed to be considered by the faculty.

It is also worth noting that whether or not Spiro exercised undue influence on the hiring question, CIJA definitely wanted people to pressure the university, using fundraising as a cudgel. Its email said:

If someone could quietly find out the current status, and confirm Azarova’s pending appointment, that would be very helpful. The hope is that through quiet discussions, top university officials will realize that this appointment is academically unworthy, and that a public protest campaign will do major damage to the university, including in fundraising.

In this context, a U of T law professor’s comment blaming the situation on “the nexus between money, power and influence”—which Mostyn suggests is an anti-Semitic trope—may be a straightforward reference to the CIJA email. (That said, one may wonder if such language would have been used with regard to a similarly worded email from a black, gay, or feminist organization objecting to the appointment of someone seen as racist, homophobic, or misogynistic.)

Just how “problematic” is Azarova’s record? Mostyn and other critics say she is an Israel-hater with a “morbid obsession”; supporters say her opinions are well within the (left-wing) mainstream. A look at both Azarova’s curriculum vitae (up to 2016) and her profiles on Academia.edu and Google Scholar shows that her work focuses on Israel/Palestine, and there is little doubt she is an advocate for Palestinian causes. (A recent bio on one of her essays says that she “practiced international law in Palestine from 2008-2015 and taught international law in Palestinian universities since 2010.”)

Gessen’s New Yorker article subtly downplays this commitment, starting that Azarova focused on the subject “early in her career.” In fact, of Azarova’s ten academic articles and book chapters listed on Google Scholar published since 2017, five are on Israel/Palestine and three others deal partly with this subject. However, her recent work does have a broader focus: thus, a 2018 paper on occupation and international law opens with a mention of the Israeli occupation of Palestinian territories but immediately notes that similar issues exist in “northern Cyprus, Western Sahara, Transnistria, Nagorno Karabakh, South Ossetia and Abkhazia, and most recently Crimea.” (Russia’s occupation of Crimea is the subject of another 2018 paper/book chapter by Azarova.)

Another “problematic” part of Azarova’s career mentioned by her detractors— but left out by Gessen and Appel—is her past legal work, in 2010-2011 and 2013-2014, for the Palestinian activist group Al Haq, which Israeli authorities believe has terrorist ties. (It is allegedly linked to the Popular Front for the Liberation of Palestine, which is designated as a terrorist organization by the U.S., Canada, Israel, and the European Union.) We run, once again, into the problem of narratives and counter-narratives. Many mainstream and governmental organizations in Europe treat Al Haq as a respected human rights group; it’s affiliated with the International Commission of Jurists and has received funding from the EU as well as the governments of Norway, the Netherlands, Switzerland, and several other European countries. On the other hand, its director, Shawan Jabarin, has a past conviction for PFLP recruitment and is believed by Israel to still be active in the organization. The Israeli Supreme Court has repeatedly upheld the ban on his foreign travel. In 2018, Visa, MasterCard, and American Express terminated online donations to Al Haq because of concerns about its link to PFLP after being contacted by a pro-Israel lawyers’ group.

Lastly, there are allegations that in 2018, Azarova supported an attempt to deplatform George Mason University law professor Eugene Kontorovich at a workshop at the Asser Institute in the Hague, where he was the only speaker dissenting from the view that doing business in occupied territories should be illegal. Kontorovich says that some participants objected to his inclusion and that, while Azarova was not “the ringleader” of the effort to get him booted, she opened her own presentation with the disclaimer that her participation “does not constitute an acceptance of the unconditional invitation to Eugene Kontorovich.” Kontorovich and others have suggested that this behavior raises questions about her ability to be impartial and open-minded while organizing conferences and workshops, which would have been part of her job at the human rights center.

When I emailed Azarova to ask about this incident, she replied that the issue was not Kontorovich’s opinion, but concerns that he was himself the resident of a West Bank settlement considered illegal under international law, as reported by the pro-Palestinian Middle East Monitor in 2015. (Kontorovich’s official bios say that he divides his time between Virginia and Jerusalem.) “I did not lead the effort to bring the concerns to the attention of the organisers and Institute,” Azarova wrote. “Because of these concerns a significant number of the original invitees decided to withdraw from the meeting, whereas I continued to participate.”

Kontorovich confirmed the broad outline of her account in a telephone conversation, saying that after his paper was accepted for the workshop, the organizers contacted him to say that some participants wanted to know whether he lived in an illegal settlement. He said that he replied that he considered the question “impertinent and irregular,” akin to asking a woman delivering a paper on abortion rights whether she had ever had an abortion, and that the matter was dropped. However, some of the participants who objected to his presence imposed unusual conditions, including not putting a video of the workshop online so as to not “legitimate” his participation. While he reiterated that Azarova did not initiate these actions, he said that she was probably “the second most vocal.”

Azarova still believes the inquiry was entirely appropriate, since it had to do with Kontorovich’s possible involvement in “internationally illegal activity” when that activity was the focus of the workshop. Kontorovich argues that it was not only an absurd invasion of privacy (“I’ve never heard of professors being checked for whether they reside in a place considered lawful by other participants,” he told me) but a de facto discriminatory interrogation imposed solely on Israeli citizens. He also stands by his view that the incident was about censoring dissent and that it should raise questions about Azarova’s fitness for the U of T job. In his words, “To hire someone as the director of an academic center who would not have [a speaker] at a conference who does not share their academic views is contrary to the idea of an academic center.”

I have very mixed feelings about this story. While I am hardly an uncritical defender of Israel (let alone of Benjamin Netanyahu’s leadership), I think the “human rights consensus” on Israel that Gessen sees as authoritative—exemplified by the recent Human Rights Watch report concluding that Israel’s treatment of Palestinians meets the criteria for “apartheid and persecution”—is severely flawed. Even Foreign Policy essayist and Council on Foreign Relations scholar Stephen A. Cook, who believes the HRW report “makes a strong case,” concedes that it has some serious flaws—from drastically downplaying Israel’s security concerns (Cook even writes that “one is left to wonder whether there is any way Israelis could choose to protect themselves that would be acceptable to Human Rights Watch”) to eliding the fact that the Palestinian leadership was offered “a conflict-ending deal” in 2008 to erasing the distinction between the occupied territories and Israel proper. (Azarova, by the way, is married to HRW official Bill Van Esveld.)

While I don’t think Azarova’s advocacy should have disqualified her from the job, I do think that, at the very least, she should have been asked about her stance on Israeli scholars and other guests participating in the center’s work.

I also think that, as I mentioned above, Azarova’s defenders downplay aspects of the story that don’t fit their narrative (and sometimes misstate the facts, as when Appel claims in The Forward that Spiro called the U of T official to object to Azarova’s hiring). And that’s not to mention the obnoxious Oppression Olympics tropes: Gessen reports the opinion of a former International Human Rights Program associate, Vincent Wong—who quit his job as a U of T law school adjunct in protest—that the Cromwell report is suspect because “a powerful white man was investigating the conduct of other powerful white men—the university president and the law dean.”

On the other hand, there’s also some Oppression Olympics-type behavior from the anti-Azarova side. Yes, Israel-bashing can definitely be a vehicle for anti-Semitism, as we have seen in recent days with some pro-Palestinian protests erupting into vile anti-Semitic abuse. But to say that Azarova’s hiring by the human rights program would have created an “unsafe environment at the law school” is quite a stretch—and echoes standard “social justice” language that has been used far too many times to squelch or restrict speech that questions progressive orthodoxies on race, gender and sexuality.

I have written before that some of the discourse around Israel and anti-Semitism on the right and center-right can be a mirror image of social justice rhetoric about “harm,” “safety,” and assaults on identity. I think the extent to which standard social justice discourse on oppression, hate, and privilege erases anti-Semitism and relegates Jews to the suspect category of privileged white people reeks of hypocrisy. But I also don’t want Jews to scramble for a place in the victim sweepstakes.

I also agree that, even aside from the adoption of the progressive language of victimhood, there is a history of Israel supporters going after Israel critics in ways that raise legitimate free speech concerns. (See, for instance, the cancellation of an honorary degree for playwright Tony Kushner at CUNY in 2011 after some trustees objected to Kushner’s comments accusing Israel of “ethnic cleansing,” or the various controversies over speakers at state colleges being asked to sign pledges that they are not boycotting Israel so as to comply with legislation that bars states from doing business with entities supporting such boycotts.) Principled advocates of free speech absolutely must take a stand on such issues—as, for instance, the Foundation for Individual Rights in Education has done.

But the claim by Gessen and others that Israel/Palestine issues are a notable danger zone for free speech in the academy is North America is, to be blunt, preposterous.

Not only have numerous individual academics spoken out on Azarova’s behalf; her alleged cancellation has actually prompted Canada’s largest academic professional association to effectively cancel the University of Toronto for “canceling” her. This demonstrates several things. One: critics of Israel and defenders of Palestinian causes are far from being a beleaguered minority in academe in North America. Two: they are hardly afraid to speak their minds. Three: they are definitely not afraid to use collective pressure in defense of “their own.”

Let us say, arguendo, that what happened to Azarova was an example of “cancel culture” on the right. The fact is that a very powerful counterweight to this “cancel culture” already exists within the academy, and we are seeing it in action.

Now, imagine for a moment that a candidate’s job offer had been withdrawn because someone had alerted administrators that, given her past writings, statements and/or social media posts, her hiring was likely to anger anti-racism activists, feminists, or the LGBT community. Would other faculty members be resigning in protest? Would the school be facing censure and boycott from professors’ associations? Almost certainly not. In such cases, the “cancellation” is consistent with the academy’s majority values.

That’s why the “free speech warriors” derided by Jeet Heer et al. are raising the alarm and fighting back.

And yes, they should be consistent. But it’s also fine for them to focus on areas where there is little or no resistance to speech suppression.