On a normal day, the Columbia Law Review’s website is not a feast for the eyes. What it lacks in visual appeal, it makes up for with a panoply of articles and student notes addressing a range of legal issues. But for much of last week, the website displayed just a single line: “Website is under maintenance.”
One would be forgiven for envisioning a shiny new website on the horizon. But these four words were a lie. There was no maintenance.
Instead, CLR’s board of directors unilaterally took down the website after the journal’s editorial staff solicited, edited and published Toward Nakba as a Legal Concept, written by the Palestinian human rights lawyer and scholar Rabea Eghbariah. Only after the Guardian, the New York Times and other media outlets reported on the board’s censorial stunt and student editors threatened a work stoppage did the board reinstate the website.
Last November, the Harvard Law Review’s own attempts to censor Eghbariah reached a different outcome. In that case, the president of HLR revoked publication of The Ongoing Nakba, a shorter blog essay by Eghbariah that the journal had solicited, edited and slated for publication. A majority of HLR editors voted to sustain the president’s decision. 25 editors publicly dissented, and two resigned.
We are the student editors who solicited each of these pieces through our journal’s usual channels: Erika at CLR, Tascha at HLR. Both of Eghbariah’s pieces argued that “the Nakba” – a term commonly used to describe the Palestinian catastrophe of mass displacement and dispossession in 1948 that extends to include the continuous reality of violence and domination thereafter – should be recognized alongside other crimes against humanity like apartheid and genocide. The longer article in CLR provides a meticulous overview of the Nakba in both history and international law and outlines Nakba’s characteristic legal elements: displacement, fragmentation and the denial of self-determination.
To justify censorship, those opposed to publishing Eghbariah’s pieces pointed to procedure. CLR’s board of directors alleged “process deviations” as justification for shutting down the journal’s entire website to block the piece. And back in November, several HLR editors, in persuading their peers to vote down Eghbariah’s essay, claimed that there had been procedural issues in its editing.
Appeals to process carry a veneer of objectivity. They allow school administrators and editorial boards to argue that they respect free expression and are simply enforcing predetermined, apolitical rules. (At times, universities have more brazenly chilled pro-Palestinian speech by inventing new rules on the spot.)
But even if procedures are themselves content-neutral, their enforcement is often not. Because procedure is frequently an outgrowth of convention, the line between flexible adaptation and impermissible transgression is often fuzzy. And even when the rules are written down in ink, procedure is rarely followed to a T. Opponents of controversial speech can therefore almost always point to some alleged procedural deficit to rationalize censorship.
For example, Columbia banned two pro-Palestinian student groups seemingly for failing to provide 10 days’ notice about a protest. Harvard suspended the college’s only recognized pro-Palestinian student organization for publicizing an event that the group hadn’t officially co-sponsored, thereby allegedly violating the school’s co-sponsorship policy.
Meanwhile, the CLR board of directors asserted that Eghbariah’s article “had not been subject to the usual processes of review or selection” and “that a number of student editors had been unaware of its existence”. A disclaimer on the website’s home page continues to misleadingly claim that the piece had been published through a “secretive process”. But 30 staffers edited Eghbariah’s article, which is consistent with the editing of other pieces. And the board raised no problem when a series of tributes to the late Columbia law professor Kent Greenawalt were edited by just four staffers and printed without the whole staff’s awareness.
In each case, those signing off on banning student groups or voting to silence scholars are unlikely to say explicitly that they were influenced by external pressure or sought to block certain viewpoints.
Instead, they do things like criticize the fact that a piece hadn’t been posted on the journal’s Slack channel or uploaded to Dropbox. They declare that students’ activities, or Instagram posts, were unauthorized. Rather than own their substantive opposition, they argue about procedure.
None of this is to suggest that procedure doesn’t matter. In fact, in both of our journals, important procedural conventions that protect academic freedom were breached to silence Eghbariah.
The board of directors of our journals have traditionally functioned as little more than advisory bodies to our famously student-run organizations. Under this arrangement, our staff are free to solicit and publish pieces as we so choose – a freedom that the alarming antics of the CLR board endanger. As professor Jake Charles of the Pepperdine University school of law has observed: “[T]he irony is that in the name of concerns over process the Board intervene[d] in a way that it admits is unusual.” Currently, the CLR staff is on strike, fighting to regain editorial independence from the board, including the removal of the board’s discriminatory disclaimer on Eghbariah’s article.
HLR also has conventions for pieces that the journal commissions. We don’t tell our authors what to argue, and they can expect that their work will be published unless they fail to rectify factual inaccuracies or plagiarism. These conventions guarantee a zone of freedom for our authors. But following HLR’s revocation of Eghbariah’s piece, future authors we solicit might self-censor to avoid the same fate.
Two things can be true at once. Clear and established procedures can usher journals to publish excellent and diverse scholarship. We have a duty to respect these procedures. But, as the attempts to suppress pro-Palestinian speech in our journals reveal, bad-faith actors can also weaponize arguments about process to limit academic freedom and censor speech deemed controversial. Their efforts to do so should be resisted.
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Erika Lopez is a recent graduate of Columbia Law School, where she was an editor and DEI chair of the Columbia Law Review
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Tascha Shahriari-Parsa is a recent graduate of Harvard Law School, where he was an editor and online chair of the Harvard Law Review