TMU report demonstrates the perils and chilling effects of university speech

A much-anticipated external report, headed by former Nova Scotia Chief Justice J. Michael MacDonald, has found that students at Toronto Metropolitan University’s law school were exercising their freedom of expression and did not engage in antisemitism when they penned an infamous and offensive letter on Israel-Palestine weeks after the horrific Hamas terrorist attacks of October 7th.

The letter, with 72 signatures from students of the law school (36 anonymously), asserts that “‘Israel’ is not a country, it is the brand of a settler colony.” The signatories refer to Israel as an “apartheid state,” accuse it of genocide, and write that they “stand in solidarity with Palestine and support all forms of Palestinian resistance and efforts toward liberation.” The letter writers also “assert that Hamas’ attack was a direct result of Israel’s 75-year-long systemic campaign to eradicate Palestinians.” They go on to condemn the law school’s “neutral” position on the situation.

The letter was obviously incendiary, and was read by many critics as a justification of the October 7th attack. It is no surprise that administrators at the law school panicked, holding an emergency meeting on a Saturday. The response, two days later, was a statement by the law school that included: “We unequivocally condemn the sentiments of Antisemitism and intolerance expressed in this message.” The letter writers were subject to blacklists, particularly from people in the legal community stating they would refuse to hire TMU grads, and applicants for jobs at the Ministry of the Attorney General (Ontario) were also required to attest that they did not sign the letter. Signatories were also subject to harassment, doxxing and hate mail. The law school faced demands from B’nai Brith Canada that the students be expelled.

The external report is a substantial document, following a comprehensive consultation process. MacDonald met with most of the named signatories of the letter, some of who continue to support it, others who regret some of the language “but do not regret their solidarity with the Palestinian people.” (p. 77). The report notes that “many” of the students “came to recognize that the tone of the letter was harsh, and the delivery could have been more sensitive.” A few had been under the impression the letter was intended for correspondence with the administration and not meant to be public. The students “were unanimous that they intended to criticize the actions of the Israeli government, and not to disparage Judaism or Jewish people.”

The report also undertakes a thorough analysis of how the letter writers understand its various provisions. For example, on the “support all forms of Palestinian resistance” - a deeply inflammatory passage that led many to criticize the letter for ‘supporting the October 7th attack’ - “Virtually every signatory we met with said they do not support violence against civilians. Many pointed to the meaning of ‘resistance’ under international law, which prohibits targeting innocent civilians. … Students also noted that the letter referred to the October 7 attacks as ‘war crimes’, thereby expressly condemning those actions.” (p. 90). Similarly, the claim that Israel is “not a country” was likened to references to “so-called Canada” in the critical-of-colonialism context.

MacDonald concludes that “the students’ participation in the letter, while damaging and hurtful, was nonetheless saved from sanction as representing a valid exercise of their freedom of expression, in accordance with the University’s Statement on Freedom of Speech.” (p. 134). He found that neither the student signatories nor the letter committed or threatened violence, nor did it breach the law or abuse the Code or other University policies. (p. 135).

On the question of harassment, MacDonald incorporates the need for intent, and concludes the letter did not meet that bar. (p. 136). MacDonald was correct to conclude that certain aspects of the letter, for example parts minimizing the role of Hamas, was “most generously, … misguided” and that its poor wording left itself open to “misinterpretation, which invoked true hurt and fear amongst many Jewish students, faculty, staff, and community members.” (p. 138). MacDonald notes that “[o]ne could argue that participating in the letter would nonetheless constitute harassment as envisaged in the Code because the participants ‘should have known’ the harm it would cause. Yet this interpretation would fly in the face of TMU’s Statement on Freedom of Speech which, as noted, permits all speech on campus unless it is itself unlawful or prevents the lawful exercise of free speech by others.” (p. 139).

MacDonald does not spend a lot of time elaborating on his conclusion that the letter was not antisemitic, and that the law school administration was wrong to make that accusation, something that carried great harm for the letter’s signatories. The external report reviews a variety of definitions of antisemitism, including the much-contested IHRA definition, and MacDonald concludes they “have a common core, which is that antisemitism involves expressing hatred towards, discrimination against, or stereotyping Jewish people or the Jewish religion. Generally speaking, the common core of these definitions does not, and should not, consider criticism of actions of the state of Israel, including the military actions of Israel, to be antisemitic.” (p. 141).

MacDonald is generous with the administration for its antisemitism accusation, saying that its “reaction was understandable, albeit regrettable.” (p. 141). I cannot agree. As offensive as aspects of the letter might have been, administrators had no business weighing in, let alone making such an egregious accusation. They no doubt felt tremendous pressure from other students, faculty, staff, and perhaps even donors or the government, but they had no business accusing their own students of antisemitism in relation to a letter whose content does not meet any legal standard for hate speech. It is not only chilling for freedom of expression, it is arguably defamatory, and if the University and the law school have not yet apologized for it, they should do so immediately.

Moreover, increasingly we are seeing claims not only that equate criticism of Israel with antisemitism, but also that equate criticism of Zionism with antisemitism. But Zionism is an ideology, not a religious or ethnic identifier. Not all Jewish people are Zionist (indeed, some are loudly anti-Zionist), and not all Zionists are Jewish (Google “Christian Zionists” if you don’t believe me). Zionism is not, and should not be treated as, an ‘analogous ground’ of discrimination, and criticism of it, however harsh, is lawful and protected speech.

This does not meant that no critic of Israel or Zionism ever engages in antisemitism or leverages those criticisms as dog whistles. As MacDonald makes clear, even the letter writers acknowledged that we are currently awash in a horrific trend of antisemitism, not only in people’s words but in violent and patently unacceptable acts. These incidents of genuine antisemitism need to be called out. But the extension of the concept to forms of expression like the students’ letter only serves to detract from that. And it is deplorable that leaders of a law school of all places would absolutely fail to discern the difference.