by James A. Bacon

In the fall of 2022 a furtive figure was caught on videotape draping a noose around the Homer statue on the Grounds of the University of Virginia. The university administration immediately declared the act a hate crime. University police launched an investigation, enlisting the FBI to help in the search for the perpetrator. A $10,000 award was offered to anyone who could provide more information.

“The facts available indicate that this was an act intended to intimidate members of this community,” said President Jim Ryan in a letter to the community. “A noose is a recognizable and well-known symbol of violence, most closely associated with the racially motivated lynching of African Americans.”

A noose hung from a tree branch is indeed a recognizable symbol of lynching. The meaning when hung around the neck of a statue of an ancient Greek poet, however, was not self-evident (as we noted at the time). Indeed, when the offender was discovered, it turned out he hadn’t been targeting African Americans at all. Irate at how the Homer statue placed a hand on the head of a naked youth, the Albemarle County man declared that it “glorified pedophilia.” Local authorities charged him with intimidation anyway.

That was then.

The day after Hamas’ October 7 terrorist assault on Israel, the Students for Justice in Palestine at UVA issued a statement  declaring that “colonized people” had the right to resist oppression “by whatever means they deem necessary.” A poster promoting the October 12 march showed a Hamas bulldozer plowing through an Israeli security fence. “Decolonization is not a metaphor,” the poster said. Later that month, SJP held two rallies on the Grounds. Marchers waved Palestinian flags and chanted, “Palestine will be free, from the river to the sea.” Some insisted that the slogan was just a call for solidarity with oppressed Palestinians, but many Jews interpreted it as advocating the eradication of the Israeli state and, in the context of the Hamas massacres, the slaughter of the Jewish population.

Ominously, many marchers also wore masks to hide their faces with the explicit aim of preventing identification. A “Walkout for Gaza” flier urged participants to “wear a mask/hat/sunglasses to protect your identity,” to “avoid wearing identifiable items such as jewelry with your name on it, and cover up recognizable tattoos, birthmarks, or piercings.” Do not, the flier stressed, “identify yourself or affiliate yourself with any organization.” 

To many Israelis and Jews, masks evoke images of jihadists and terrorists wearing keffiyehs (traditional Arab scarfs) draped around their faces to preserve their anonymity. The UVa administration expressed no concern about the masks, even though, harkening back to the suppression of the Ku Klux Klan, it has been illegal in Virginia to wear a mask to conceal one’s identity.

Section § 18.2-422 of the Code of Virginia states:

It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.

The law does provide exceptions for holiday festivities, theatrical productions, medical necessity, and occupational protection, but none of these applied to the SJP rally. UVa’s in-house policies on “protests, demonstrations and other expressive activity” do not mention the wearing of masks — even though they are common garb for left-wing militants such as Antifa as well as Palestinian sympathizers. The question of masks never arose in correspondence, obtained by The Jefferson Council through the Freedom of Information Act, in which the Palestinian rally organizers sought an event permit from UVa officials. There is no indication in that correspondence that SJP asked for, or Student Affairs granted, consent for marchers to cover their faces.

Clearly, a double standard prevails at UVa. Perceived intimidation in the form of a noose around a statue sparked swift and decisive action by the administration. Perceived intimidation in the form of masks illegally worn during a march in which hundreds chanted for the “decolonization” of Israel has inspired no response at all.

The Hamas-Israel conflict has put Ryan in an awkward position. Letters, emails and petitions have flooded the president’s office. Pressed by sympathizers of both Palestinians and Jews, Ryan studiously avoided taking sides. As we documented in an article yesterday, many Jews perceive UVa as a hostile environment. But Ryan’s most substantive action to date has been to appoint a religious diversity task force to identify religious discrimination against Jews and Muslims alike and to promote civil dialogue at UVa. In other words, despite the utter non-existence of rallies or “teach-ins” calling for violence against Palestinians or Hamas, worries about “islamophobia” share equal billing with antisemitism. Remarkably, two of eleven members of the task force openly proclaimed their bias in a faculty letter chastising Ryan for his failure to give sufficient weight in his public remarks to Palestinian suffering.

Many Jewish alumni and parents have called upon Ryan to issue a statement declaring rhetoric with genocidal overtones to be antithetical to core UVa values. He has declined. To justify his silence, Ryan has invoked two main arguments. First, anti-Zionist words are protected by free speech. Second, it’s a bad idea for university presidents to pontificate on public controversies.

Some speech is freer than others

Ryan explained the free-speech argument to a group of Jewish parents this way:

It is tempting to step in to settle things in the name of upholding the University’s values — or common decency, for that matter. But we would be threatening our fundamental commitment to free speech and to students learning from each other were we to step in.

‘Free and open inquiry inevitably involves conflicting views and strong disagreements. Indeed, some ideas may be offensive, noxious, and even harmful,’ he continued. ”The University must not stifle protected expression, permit others to obstruct or shut down such expression, or regulate the tone or content of responses that stop short of interfering with others’ speech or violating the law.’

In Ryan’s view, in other words, as much as pro-Palestinian speech might offend some members of the UVa community, people have the right to the peaceful expression of their views.

It is worth noting that he side-steps the fact that wearing masks without UVa’s express permission violates Virginia state law. But more importantly, as we argued in a recent blog post, “The Asymmetric Application of Free-Speech Principles,” Ryan invokes the free-speech argument selectively.

No one acted to protect med school student Kieren Bhattacharya’s right to free speech when he was subjected to a disciplinary process for questioning the basis for “microaggression” theory. No one defended business school prof Jeffrey Leopold when he was demonized for telling a joke that invoked stereotypes of Americans, Chinese, Russians, Europeans… and Africans. Ryan explicitly refused to clear the record of undergrad Morgan Bettinger who was wrongly accused of making an inflammatory statement about Black Lives Matter protesters, and then punished for it.

The enforcement of speech codes has been bureaucratized. UVa urges students to submit complaints of speech offenses against protected groups on its Just Report It system. Students, faculty and staff are subject to being interrogated and punished for transgressing ever-evolving standards. UVa officials respond in knee-jerk fashion if some protected group declares itself to be offended but invokes free speech if a group not enjoying official favor does.

The fact is, UVa shuts down — or allows others to shut down — speech it deems offensive. In this current controversy Ryan is using a fig leaf to cover his moral neutrality. If Jews feel demeaned and threatened, he does not consider their sensibilities to be an actionable concern.

Selective moral outrage

In making the slippery slope argument, Ryan opined that commenting on one news headline creates demand for official statements on every controversy. “To start down the road of condemning specific statements that contravene our values, as tempting as it is at times, is to start down a road that is endless,” he wrote in a letter to Jewish parents. Acting upon this conviction, Ryan launched a committee in December to devise a set of principles, akin to those listed in the University of Chicago’s Kalven Committee statement, to guide him and future UVa presidents in such matters.

Ryan’s use of slippery-slope logic is new for him. He has commented frequently in the past on acts that offended his moral sensibilities. A few examples…

In August 2018, shortly after becoming UVa president, Ryan remarked upon the Unite-the-Right rally which was still fresh in the minds of Charlottesville residents. “Like those of you who are here, I was horrified by the scenes of violence and the scenes of neo-Nazis and white supremacists marching with tiki torches. It was as alarming as it was appalling,” he said.

In June 2020, Ryan opined in a message to the University of Virginia community: “What happened to George Floyd – his callous and indifferent killing at the hands of a white police officer – was immoral and sickening…. This sort of violence against black people, including at the hands of those who are supposed to protect all of us, is sadly all too familiar and stretches back not just decades, but centuries, through the Civil Rights Era, Jim Crow, Reconstruction, and slavery.”

In March 2021, Ryan addressed the murder of eight women of Asian descent in Atlanta. “This incident is a reminder of the alarming rise and violence and harassment against the Asian-Pacific community over this past year,” he wrote on Instagram. Any attack on Asian Pacific Islander Desi Americans (APIDA) “is an attack on us all. We cannot and will not tolerate it. … That means refusing to accept the rhetoric of hatred and bigotry whenever and wherever we hear it, and working to reduce the climate of fear that can give rise to these incidents.”

Condemning hatred and bias is easy when the offenders are, or thought to be, White supremacists. It’s a lot harder when the haters are Palestinians at UVa and their allies on the left. Now that Ryan finds himself caught in an irreconcilable conflict, he wants to stay out of the fray. That is his prerogative. But if he appeals to the principles of free speech and institutional impartiality, he needs to apply those principles consistently, not just when it suits him.

James A. Bacon is executive director of The Jefferson Council. This article is republished with permission from the Jefferson Council blog.