The Tent Arrests at Indiana University and the Rule of Law

We can put college administrations’ reaction to pro-Hamas¹ tent encampments into three categories:

1. Let students break the rules. MIT, Columbia, UCLA.

2. Punish students who break the rules. The University of Chicago?²

3. Punish students even if they don’t break the rules. Indiana, Texas.

Of course, anybody with any sense of justice would punish students if they broke the rules, but not punish them if they didn’t. This seems to be the smallest category. It’s common sense, and University of Chicago President Paul Alivisatos’s April 2024 statement, “Concerning Encampments,” puts it very well. He gives two examples at his university: an “Honor the Martyrs” pro-Hamas exhibit that was highly offensive to most people but followed the rules, and the occuptation of an administration building which was illegal and resulted in arrests and student discipline.

I taught economics at Indiana University until I retired in 2021. The University has for decades posted a rule deriving from a Trustee Policy of 1969 that students can protest in Dunn Meadow any time they like without having to get a permit first, but “structures”, including tents, aren’t allowed from 11 p.m. to 6 a.m. This year, pro-Hamas students set up tents around noon . The campus police told them to take them down, because they claimed the policy had been changed, though the website the previous day had shown no change and the police and IU officials couldn’t explain why they thought policy had changed.³ The students refused. Then, the Indiana State Police showed up in large numbers dressed like soldiers, with helmets, body armor, transparent riot shields, an armored personnel carrier, and a sniper team posted on the roof of the Indiana Memorial Union. They arrested about 30 people, including four members of the faculty, and destroyed the tents, though they let another 70 people remain. Everyone arrested was connected with the university— they were not outside agitators— they were unarmed, and they weren’t threatening anyone.⁴

If the police had arrived at 11:30 pm and found tents there, I would praise IU President Whitten for ordering arrests and suspensions. But she jumped the gun. She arrested people who’d done nothing wrong, who had broken no rule. Since the police did the arrests at 3 pm, I condemn her, for trying to look tough rather than to be just, and for teaching the students that rules don’t matter, only power.⁵

Before we go on, though, I should establish my bona fides, my good faith. I am conservative, pro-Israel, Fundamentalist Christian (or at least willing to be called that), anti-Communist, and anti-Hamas. Today I even whipped out a yarmulke and gave a little speech at the anti-Hamas rally on campus. I have been called reprehensible, sexist, racist, homophobic, intolerant of women, disrespectful to women, intolerant of racial diversity, unchristian, vile, stupid, bigoted, loathsome, and like someone out of the 18th century, by the previous leaders of Indiana University-Bloomington, I’ve had fake blood dripped on my doorstep, and 403 faculty and staff at the Kelley School of Business, including most of my immediate colleagues, signed a statement condemning me as too conservative. I’m not a typical professor. But after that episode, I joined the AAUP, a liberal to leftwing organization, helped found the MIT Free Speech Alliance (My PhD is from MIT), and now am running for Republican Precinct Committeeman, Perry 19 (vote for me next Tuesday!). Freedom of speech needs all the help it can get. I was planning to set up a tent and get arrested with the Communists to show my support for their right to be on Dunn Meadow from 6 a.m. to 11 p.m. The idea was to organize professors so we’d have one of us arrested each day rather than all at once, so I visited the protesters and talked with them; I asked people who were arrested how to endure the boredom at the jail; I wondered where to find Israel flags to drape over my tent. But President Whitten realized she’d lost, and started pretending she just didn’t see the tents there, and I never did get arrested. So I’m not your typical Gaza protester either. I’m someone who supports the Rule of Law.

Most people, even college presidents, don’t understand the Rule of Law. Rules of time, place, and manner regulate free speech and make it workable in practice. Obey the rules, and you can say “Kill the Jews”. Disobey, and you can’t even say, “I like little kittens.” Rules matter. Once you move to “Their cause is just, so the rules don’t apply to them,” you’ve abandoned the Rule of Law. One you move to, “He’s evil, so he should be shut down even though he’s following the rules,” you’ve just as much abandoned the Rule of Law. Forgetting this is why we are having such trouble with campus protests.

The fundamental principle of all kinds of subjects— optimal incentives, civil society, child rearing, and dog training— is

Make the rules clear, and punish rule-breakers but not rule-followers.

Part of this is the realization that punishment must always be backed up with force. Usually force doesn’t have to be used, because it’s clear who would lose, but force has to be there in the background I smiled when I read this faculty resolution from some decades ago:

We believe the University should not use physical force to enforce these rules. In cases of non-compliance, the University should use the legal process to enforce its legal rights. This commitment might involve some cost to the University and would probably entail more serious consequences for violators; we believe these costs are an appropriate way to mark the weight the University community attaches to both the rights and responsibilities it recognizes in the Assembly Ground.

What is “the legal process”? It is going to court, obtaining a conviction, and using the might of the State to punish the offender. If the offense is trespassing, the process they’re thinking of, I guess, just delays in having the police come and drag away the trespasser by force. The true legal process is to have the police come and arrest the trespasser if there is probable cause to think he’s trespassing, and then to hold a trial later to decide if he really *was* trespassing. If he was, he’s punished by the state; if he wasn’t, he can sue whoever called the police and get money compensation from them for his false arrest.⁶ That’s the Rule of Law.

Whether the rulebreaker is being peaceful or not has zero to do with whether he should be punished. The crimes of larceny, burglary, criminal trespass, embezzlement, child pornography, drug dealing, and illegal arms sales are all peaceful. Even robbery and kidnapping are peaceful if the victim doesn’t resist. Those are all still evil deeds, and crimes. Whether the police are violent or not also tells us nothing. If rulebreakers resist arrest, the police have to bring them in by force. The only issue is whether they’ve used more force than necessary. It’s fine for them to club someone, tie them up with zip ties, and drag them on the ground if those are necessary to uphold the law, if the lawbreaker refuses to come peacefully.

I am sure some readers disagree. I sound too brutal. But regardless of how I sound, am I not right? Don’t you think you ought to like the Rule of Law even when you know what it requires? In fact, maybe you don’t like the Rule of Law, even if you pay it lip service. It’s important to understand one’s own true beliefs.⁷ Most people do not like the Rule of Law, in fact. It’s a little hard to understand why we should follow rules rather than just do what is right. Children have to be taught this principle. They have to be taught that rules are a good thing, and if everyone follows them, we are all better off, even if the rules get it wrong sometimes. This, indeed, is a big reason for playing sports in high school. Games just don’t work without rules, and while sometimes the referee gets it wrong, it’s better to have referees than have each player decide for himself what is right,

Many people prefer the Rule of Man: the leader should do what’s right, rather than following rules.⁸ Of course, this really has to be phrased, “the leader should do what seems right to him,” since we’re not telling him he has to follow any rules. Other people— an increasing number— go by the principle of “Cui Bono?” (To whom is the good?) or, as Lenin put it, “Kto Kovo?” (Who, Whom?). Economists use these as useful principles for deciding why something happens— ask who has a motive, who benefits, rather than looking at what people say are the reasons. Economists do not say this is good; they just say it is good for explaining things. But a lot of people, including the entire far left, follow Thrasymachus in Book I of Plato’s Republic and say that “Justice is the will of the stronger”: what matters is to figure out what side Your People are on and what side the Other People are on and do whatever benefits Your People.⁹ Thus, before you can tell whether protesters should be punished, you have to know whether they are pro-Hamas or pro-Israel. The lefties like to call Our People “the Oppressed”, and “Other People” “the Oppressor”, but those are just labels that have nothing to do with who is more powerful or more victimized. “The Oppressed” in Chicago are blacks, even though they run the city government; “The Oppressors” in the Middle East are Jews, even though Moslems in Israel are treated better there than they are by Moslem rulers.

That’s why I was willing to speak at the anti-Hamas rally today when I am also willing to stand by the pro-Hamas protesters and be arrested with them tomorrow. And that’s why I will support any college administration with rules like those at IU if they call police to forcibly arrest protesters at 11:01 p.m., but fight them if they arrest them at 10:59 p.m. People who defy rules must be punished; people who obey rules must be let alone.

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Footnotes

1. Some people might object to calling the protesters “pro-Hamas”, saying they are “anti-Israel”. That’s a little like saying someone who wanted the Germans to beat Russia in World War II wasn’t pro-Nazi, he was anti-Communist. If, however, I see protesters who are pro-Israel also condemning Hamas, I’ll change my wording for those protesters. I don’t see that happening. If anyone does have an example of it, do let me know. It is quite possible in theory to be anti-Israel, even anti-semitic, and also be anti-Hamas. Any decent anti-semite would take that position; historically, few anti-semites have advocated rape and murder. Even the Nazis didn’t take that position in public.

On May 16, someone posted on Twitter a photo of a book from the “Hamas Media Office” he found at the remnants of the UCLA encampment. It’s worth poking through the garbage, in more than one sense.

2. I talk about the wise words of the President of the University of Chicago, but it’s unclear whether wise words are matched with wise deeds. A number of Chicago’s most eminent faculty wrote on May 2 that:

1. Time, Place, and Manner (TPM) restrictions are put in place to ensure that expression furthers the goal of intellectual exchange in the pursuit of truth. Flagrant violations of TPM restrictions undermine the purpose of the University.

2. TPM restrictions are not being applied equally. If the University continues to allow TPM violations by these protestors, while enforcing TPM restrictions on other groups, it is effectively violating the principle of institutional neutrality outlined in the Kalven report.

3. It prevents us from hearing opposing viewpoints since these protestors have repeatedly ripped down and removed posters, flags, and banners they disagree with and shouted down speakers they disagree with.

3. It turns out that what the rules are is complicated. The University had posted one set of rules for decades as being “policy” based on 1969 Trustee Policy. It turned out that webpage was just a report from an ad hoc committee, never voted on by the faculty senate or formally adopted by the Trustees or Administration. It’s clear the protesters were relying on what the University presented as being the rule, though, and were perplexed when the police kept saying the policy was different from what was on the website. I have a later Substack going carefully over the legal situation.

4. I don’t count “He has a scary political opinion, and he wrote it on a sign” as “threatening people”. A surprising number of Americans do. If I say, “Kill the Jews”, but I’m not intending for my audience to kill some particular people right then, it’s not a threat. It’s not a threat even if I really do want someone, sometime, to put all Jews in gas ovens. It is evil, but it is not violent, and it is not a threat. If I say, “Kill the Jews”, and I aim a gun at Sam Cohen standing ten feet away, that’s a threat.

5. The President claims she didn’t break the rules, the protesters did, but that’s a joke. She created a campus protest committee the day before, consisting of some of her administrative employees but no faculty (doesn’t she even have one stooge who supports her for the sake of promotion?). The committee held one meeting and reversed the 50-year-old policy with a new set of “rules” specially for the occasion. They posted the rules on the web the next morning, but they didn’t tell the protesters about them. The protesters *had* read the existing policy carefully and were abiding by it. Even if her new committee had been legitimate, creating ad hoc rules based on dislike of a certain group of protesters is completely unlawful for a public university; the process must be “content neutral”. She will lose the civil rights lawsuits the protesters’ lawyers are already planning to file.

6. The French philosopher De Maistre carried this further. He said that in actuality, all law is enforced by the death penalty. Consider trespassing. If you trespass, the property owner calls the police. If you resist the police, they will hit you with their clubs. If you pull out a knife to defend yourself against arrest, they will pull out their guns and kill you. If they are unwilling to do that, you win— trespassing is legal, in effect. Without the death penalty, civil society cannot exist.

7. Francis Bacon’s “Four Idols” are a useful way to think about how we fool ourselves. We don’t think logically, we fall into the biases of our work or home group, we are fooled by nice words with unclear meanings, and we are fooled by trusting supposed experts. So it is quite possible you think you believe in the Rule of Law when actually you don’t like it at all and are quite happy for rules to be broken whenever you don’t like their result.

8. A good example is Judge Anne Aiken in the “kids climate case” in California. “Ninth Circuit Ends Aiken’s Eight-Year Reign of Error in Climate-Change Case,” National Review (2024). Judge Aiken would not dismiss a ridiculous case in which some young people claimed they had a right to a stable climate. The law was clear; she didn’t think she had to follow it. There are a lot of judges like that.

9. I remember in my lawsuit on behalf of New York against Citigroup for tax fraud damages, the first thing the judge said when he came into the courtroom was “Where’s the Attorney General?”. The Attorney-General of New York had decided to stay neutral. So we lost. (Probably, I must admit, because we had a complicated case involving federal and state corporate tax law, whistleblower statute law, and securities regulation; I had hoped we’d be in federal court, at least, but the judge kicked it back to state court (the federal judge was Lewis Kaplan, now overseeing the Trump-Carroll defamation case).