Australian Court Overturns Dismissal Of Anti-Israeli Professor

There is an important ruling on academic freedom out of Australia where one of the most controversial academic figures in the country secured a ruling from a federal court to overturn his dismissal by Sidney University. Professor Tim Anderson was fired after inserting a swastika in the middle of an Israeli flag and posting a picture of a lunch in which one of the guests wore badges that said “Death to Israel” and “Curse the Jews” written in Arabic.  The lower court found that the academic freedom promised Anderson upon his hiring was unenforceable and largely aspirational. The ruling (below) found an enforceable standard, though this does not end the long controversy over Anderson’s status.

Anderson, a political economist, is an extremist voice in Australian political debates. He has criticized for pro-Iranian and anti-Israeli statements as well as remarks deemed anti-Semitic. He appears to have a tolerance for some of the most blood-soaked authoritarian regimes in the world with controversial visits to places like Syria and North Korea.

Anderson has been repeatedly accused to violent crimes in support of his views. In 1979, he was convicted and sentenced to 16 years for an alleged conspiracy to bomb the house of a far-right political figure as part of Ananda Marga, a socio-spiritual organization.  After seven years in prison, he was released and later pardoned. In 1989, he was arrested again and convicted of three counts of murder for planning the Sydney Hilton Hotel bombing. However, that conviction was overturned on appeal in 1991.Despite his radical and allegedly violent past, Sidney University hired Anderson and, as part of the “Enterprise Agreement,” the university agreed to Clause 317 to “uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards.”

That brings us to Anderson’s latest controversy.  Anderson caused an outrage when he posted an image that included an Israeli flag with a swastika over it. It is a deeply offensive and disgraceful image. Anderson deserved to be roundly condemned for the posting but the Court correctly noted that this is still the expression of his view Israeli policies:

“Consider the PowerPoint presentation in more detail. It is the Israeli flag superimposed with the swastika which is the issue. Everything else in the PowerPoint presentation involves the expression of a legitimate view, open to debate, about the relative morality of the actions of Israel and Palestinian people. Dr Anderson is making a public comment asserting that the concept of moral equivalence between Israel and Palestinian people who attack Israel is false, in part, because of an asserted higher number of deaths of civilian Palestinians in Gaza from purportedly “precision attacks” by Israel compared to an asserted far lower number of deaths of people in Israel from purportedly “indiscriminate” attacks by Palestinians. He is including Israel within a long history of colonial exploitation by one political entity over another weaker entity or people. It does not matter whether this comparison may be considered by some or many people to be offensive or insensitive or wrong. As discussed, offence and insensitivity cannot be relevant criteria for deciding if conduct does or does not constitute the exercise of the right of intellectual freedom in accordance with cll 315 and 317.”

What is most notable for American civil libertarians is the references to academic freedom rather than free speech. In the United States, this would be viewed as a free speech question, particularly if committed by a state school. However, the construct is due to the contractual promise of academic or intellectual freedom afforded to faculty. That leaves an issue for renewed litigation as made clear by how the court addressed the lunch issue:

“277    The contrary submissions for the appellants are not persuasive. Insofar as the issue is one of connection to employment, it does not matter that Dr Anderson was not under any duty to post photographs or anything else on social media. He chose to do so in the described circumstances which create the sufficient connection to his employment. It does not matter that the posting of a social event does not “obviously” constitute public debate. The photo was made public and includes Mr Tharappel, an academic colleague of Dr Anderson’s at the University (see J [17]), wearing a jacket with the badge saying, in Arabic, “Death to Israel”, “Curse the Jews” and “Victory to all Islam”: J [220]. These are political comments connected with Dr Anderson’s academic work as an employee of the University. It does not matter that Dr Anderson was on leave or on about to be on sabbatical. He was still an employee of the University. It does not matter that the lunch photo was not captioned. The badge worn by Mr Tharappel spoke for itself. It does not matter that Dr Anderson made no comment about the badge. Dr Anderson chose to post the lunch photo on his Facebook account. It does not matter that in attending the lunch and posting the lunch photo Dr Anderson was engaging in a personal social activity. A person can be both engaging in a personal social activity and conduct themselves in a manner connected to their employment.

278    The question whether the University gave Dr Anderson a lawful and reasonable direction to remove the lunch photo depends on whether the lunch photo in fact constituted misconduct or serious misconduct which the primary judge did not decide. If it was in fact misconduct or serious misconduct to post the lunch photo, the University’s direction to remove the lunch photo was lawful and reasonable. If it was not misconduct or serious misconduct to post the lunch photo, the University’s direction to remove the lunch photo was unlawful and unreasonable.”

While condemning Anderson’s views, academic groups have rallied behind the case as an exercise of academic freedom. The ruling is a major win in that regard given the lower court’s view that this guarantee is effectively unenforceable. Yet, the court is sending the case back to define the limits of academic freedom. The notion that a professor could be canned for posting a picture of a third party wearing an anti-Israel badge is breathtaking. The picture can be seen in the opinion below.

Many however condemned not just Anderson but his use of free speech. The Australia/Israel & Jewish Affairs Council (AIJAC), Ron Porat is quoted as saying Anderson is a mouthpiece for Iran and he and others are “exploiting the right to freedom of speech in this country, the Al-Tajamu network promotes support for murderous regimes and terrorists, and in some cases, also disseminates antisemitic tropes.”

This is not exploiting free speech. It is the essence of free speech. We do not need free speech protections for popular speech. It is a protection that guarantees that even the least popular among us will be allowed to speak. Anderson is the price we pay for free speech. His views and conduct are often repellent and hurtful. However, the same rights protect Porat and others in condemning his views and associations. Ironically, Anderson is enjoying not just free speech but due process that is utterly absent in places like North Korea and Iran.  Yet, we do not protect Anderson because we agree with him. We protect him despite our disagreement with him in order to defend this fundamental right.

I am admittedly a free speech dinosaur.  I believe in largely unfettered free speech, particularly for statements made off campus or outside of a classroom. I have defended faculty who have made similarly disturbing comments “detonating white people,” denouncing police, calling for Republicans to suffer,  strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. We previously wrote about academic freedom issues at University of Rhode Island due to its Director of Graduate Studies of History Erik Loomis, who has defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence.

Anderson was engaged in public discourse over his views of Israel and other matters. Such viewpoint expression must be protected if we are to maintain the needed bright line rule that protects us all. We are living in an age of rage where people often spend more time trying to silence opposing voices than responding to them. In this case, a court was willing to reduce academic freedom itself to a mere aspirational consideration for universities in yielding to campaigns for termination. While the continued litigation brings continued concerns over how speech could be curtailed in this case, this was a major victory for Australian academics despite their overwhelming disapproval of the views of Professor Anderson.