Jon Wiener: From The Nation magazine, this is Start Making Sense. I’m Jon Wiener.  Later in the show: Trump’s partnership in Washington with his biggest donor, Elon Musk, is coming to an end. The richest man in the world, who made the biggest campaign contribution in history, is going home, the clear loser in this affair.  Historian David Nasaw will comment. But first: Antisemitism and freedom of speech on campus – David Cole will explain – in a minute.

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What obligations do colleges and universities have to protect students from antisemitism and Islamophobia? What obligations do they have to let students speak freely about issues they care about? David Cole just testified before Congress about that. He recently stepped down after eight years as national legal director of the ACLU, to return to teaching law at Georgetown. He writes for The New York Times, The Washington Post and The New York Review, and he’s legal affairs correspondent for The Nation. David Cole, welcome back.

David Cole: Thanks for having me, Jon.

JW: On May 7th, you testified before the House Committee on Education. This is the same committee that attacked the presidents of Columbia, Harvard, MIT, and Penn, some of whom eventually resigned after their testimony didn’t satisfy Elise Stefanik and her allies. Your hearing came after the Trump administration has opened investigations at dozens of universities over accusations of anti-Semitism and after they’ve stripped hundreds of millions of dollars from others that it says have not done enough to protect Jewish students. ‘Your’ hearing –I’m putting that in quotation marks– focused on three schools that received a grade of F from the Anti-Defamation League: Haverford, DePaul University in Chicago, and Cal Poly San Luis Obispo. The three presidents of those schools testified, and you did too.

The background of this of course, is Harvard, which is leading the resistance with a lawsuit against Trump’s funding cuts and Harvard also recently published an internal report on anti-Semitism on campus, which is part of the background of this whole thing. The New York Times called the Harvard Internal Report, “A scathing account finding that anti-Semitism has infiltrated coursework, social life, the hiring of some faculty members and the worldview of certain academic programs.” And Harvard’s President Alan Garber apologized for the problems and said, “Harvard cannot and will not abide bigotry.”
The most interesting part for us of the Harvard report, I think, was they did a survey of students that included Muslim students reporting Islamophobia on campus. And they found that while 6% of Christian students said they felt physically unsafe on campus, 15% of Jewish students did, and 47% of Muslim students. They also found 92%, almost all, of the Muslim students said they were worried about expressing their views. So did 61% of Jewish students and 51% of Christian students. So basically, a majority of all the students say they are worried about expressing their views at Harvard. So what should universities, starting with Harvard, do about this? Your starting point is not the feelings of students. What is your starting point?

DC: I’m not a college administrator.  I’m a lawyer and a law professor. So my starting point is the law. And when I testified before the House Committee, they also are not college presidents, they are members of Congress. They’re allegedly investigating whether Title VI of the Civil Rights Act has been violated. And my point was that anti-Semitism, anti-Semitic speech and Islamophobic speech and racist speech and sexist speech are actually generally protected by the First Amendment to the Constitution. They are not discriminatory harassment in most instances.

The Supreme Court has protected the rights of Nazis to march in Skokie, can’t get much more Anti-Semitic than that. They’ve protected the rights of the Westboro Baptist Church to hurl homophobic slurs at a military funeral. They protected the right of the Ku Klux Klan to burn crosses and engage in racist speech. So the kind of conflation of biased speech with discrimination, which is what’s going on in this House Committee every time they hold a hearing, is really unsupported by the law. And if the speech is not discrimination and is protected, then a state school is required by the Constitution to tolerate it. And schools like Harvard that have free speech policies should be committed to tolerating it.

JW: How do you distinguish between anti-Semitic or Islamophobic speech, which is protected, and discrimination, which is not?

DC: The core example of discrimination is when you’re denied some benefit or face some punishment because of who you are–because you’re Jewish, because you’re Muslim, because you’re Black, because you’re a woman, et cetera. Those are off to the side. But what’s at stake when they’re talking about things like slogans—’from the river to the sea’ or ‘resistance is not terrorism’–two examples that were given by the Republicans during this hearing–what’s at stake there is, is it actually discriminatory harassment? And what the Supreme Court has said is, “If the speech is targeted at a particular individual because of his national origin or his race or her/his sex, that can be discrimination. But if it’s not targeted at any particular individual, if it’s yelled at a rally, then it can only rise to the level of discrimination under Title VI. If it is so severe, pervasive and objectively offensive that it denies equal access to education.” That is an extremely high bar. Very, very few instances of speech have ever met that bar.

A slogan like ‘From the River to the Sea’ does not meet that bar. Saying ‘Resistance is not terrorism,’ or praising Hamas, doesn’t meet that bar, just as praising Israel does not meet the bar of Islamophobia, or criticizing Hamas. The members of the House Committee essentially treated any criticism of Israel or Zionism as necessarily Anti-Semitic. And first of all, it’s not necessarily anti-Semitic. You could be criticizing Israel because you think what Israel is doing is wrong as an objective of international law, human rights matter. But secondly, even if it is antisemitic, it’s protected by the First Amendment unless it is so severe, pervasive and objectively offensive as to deny someone access to education.

JW: Let me bring up a few specific examples from the Harvard report. A recently admitted medical student, “Recounted arriving for a campus visit and encountering students yelling, free Palestine, apparently to discourage Zionists from attending the school.” Now, is this a case where the students who did the yelling should be disciplined by the university?

DC: I think you can’t tell from that statement. First of all, it is simply the report of one student who is reporting the words, free Palestine, and then speculating about what the motives are of the speakers. So no, the words free Palestine are not in and of themselves discrimination. If the words free Palestine were targeted at a particular student because he was Jewish in order to harass him and you could prove that and that was found by a fact finder, then that might well constitute harassment. But my understanding of the Harvard report is that all the incidents in the Harvard Report and of both Islamophobia and anti-Semitism are simply reporting on complaints. They’re not actually adjudications of what happened.
And I said to the committee, the fact that somebody claims that a relationship between two college students is sexual harassment, doesn’t make it sexual harassment. You have to actually consider the facts, consider the reports of both people who were involved in the encounter and make an assessment of whether it was a consensual relationship or whether it was sexual harassment. You can’t just go by the words of the complainant and yet that’s what the Harvard report does and that’s what the House Committee has done in all eight hearings that it has now held on this subject. Not a single hearing is an attempt to try to figure out whether a particular instance of conduct and speech was in fact anti-Semitic discrimination or not. It’s instead, Let’s bring in a bunch of presidents, let’s berate them and try to out-Stefanik Elise Stefanik.  Who knows what the facts are? Who cares what the facts are?  Because we can throw the label ‘anti-Semitism’ out there and get a good soundbite.

JW: Here’s a couple more examples. Israeli students said they felt shunned. These are Harvard students. One said, “Some people upon learning that I’m Israeli, tell me they won’t talk with someone from a so-called genocidal country.” What do you say to that kid?

DC: “I won’t talk to a person”– I don’t think that’s harassment. I want to be clear: I don’t want to be an apologist for prejudice, for bigotry, for closed-mindedness. There’s way too much of that on our college campuses and it goes both ways. In the best of all possible worlds, we could hear each other out, we could have conversations, we could understand that different people can have different perspectives on this issue, but we don’t live in the best of all possible worlds.

This is a war, passions are inflamed and it’s a war between a country that is religiously identified and a terrorist organization that is religiously identified, which makes it very easy for people to conflate criticism of the country with anti-Semitism and criticism of Hamas with Islamophobia. Although, I will note that not a single member of the committee ever conflated criticism of Hamas with Islamophobia, although they basically all conflate criticism of Israel with anti-Semitism.

JW: One of the most vivid examples in the Harvard report was several Jewish students complained about an event called Israel Apartheid Week on campus. This is a week when the Harvard-Palestine Solidarity Committee erects a multi-panel art installation in Harvard Yard called The Wall of Resistance. The Wall of Resistance they complained featured phrases like “Free Palestine” and one panel of the installation said, “Zionism is racism, settler colonialism, white supremacy, apartheid.” Jewish students criticized this as hate speech. Now, this is an example of what you say has to be tolerated.

DC: Absolutely. Jimmy Carter wrote a book on Israel which used the term apartheid in its title. Was Jimmy Carter Anti-Semitic? No. He was criticizing a system of government that he saw as quite analogous to South Africa’s apartheid because it’s a dual standard and it treats a whole group of people as second-class citizens or second-class, not even citizens. So in the United States, you have to be able to tolerate criticism of your points of view and of the things that you believe in and the fact that somebody calls the Israeli system apartheid, you can disagree with it just like you can disagree with whether what they’re doing right now is genocide in Gaza, but that’s protected speech. And similarly, you, those who are supportive of Israel, can criticize Hamas, criticize the horrific acts that it engaged in on October 7th, and that doesn’t make them anti-Palestinian or doesn’t make them Islamophobic. It’s not discrimination. It’s simply debate about a hotly contested topic on which feelings are strong and both sides are religiously identified.

JW: Here’s the strongest argument that I know from a different perspective. You say students have to learn to deal with people they disagree with. That’s part of going to college. That’s part of life in a free country. It’s one thing if somebody’s threatening you directly, that is not permissible, you have a right to be protected from that. But otherwise, if you don’t like what somebody is saying, if you disagree, if it makes you feel terrible, you shouldn’t try to stop them from speaking.

Instead, you should speak out yourself. But some of those students argue it’s easy for you to say that. You’re a powerful privileged white man. You don’t know what it’s like to be an 18-year-old kid from a religious minority who lacks experience, lacks authority, who isn’t even sure they belong at this school, who just wants to do their classes and meet new friends. They don’t want to have to defend themselves all the time. They don’t want to have to have days filled with conflict and turmoil. You don’t know what it’s like. So they say you should listen to them. You should respect them when they say they feel frightened or fearful, instead of telling them to be more like you, and telling them to do what you do. What do you say to those students?

DC: What I would say is, look, I am not in any way denying that many of these slogans and phrases and protests can be deeply harmful to people who observe them and people who feel assaulted by them. But I agree with what Chief Justice Roberts said in the case involving the Westboro Baptist Church where you had a group literally dive-bombing a military funeral with homophobic slurs, and the court says, “These words are harmful.” There is no question that these words are harmful, but the greater danger is empowering government officials to decide which speech we should be able to hear and which speech we shouldn’t be able to hear. That I think is why our system has long required that we tolerate very, very hateful speech because the alternative is giving government authorities the power to decide what speech gets heard and what speech doesn’t get heard. Would you feel comfortable with Donald Trump making that decision? It’s about whether you’re going to empower authority figures to decide what views we hear and what views we don’t, or whether we are going to leave that to the people short of actual discrimination.

JW: The part of your testimony that got the most attention from the media was your statement comparing the committee’s activities to the communist hunting congressional committees of the fifties. Tell us about that.

DC: Well, yes, that’s how I closed my opening statement, which was to say you do have to look at each case on a fact-by-fact, fact-intensive, facts and circumstances basis to assess what actually happened if that’s what you want to do. But that’s clearly not what this committee wants to do. It wants to hurl accusations and achieve sound bites, not achieve justice, not achieve fairness, not end discrimination, but achieve soundbites by essentially demonizing individuals who are called before the committee. This is very similar to the House Un-American Activities Committee, which called in people not to try to find out what was going on, but simply to browbeat the witnesses for the political gain of the members of Congress.

And I said, “If you really wanted to do something about discrimination on campus, you would be calling in the Secretary of Education and asking her why she has cut the Office of Civil Rights of the Department of Education by half because that’s the office that actually enforces anti-discrimination, but you’re not interested in that. You’re simply interested in the political gain of browbeating witnesses.” And that’s exactly what the House Un-American Activities Committee did, and it was a mistake then and it’s a mistake now.

JW: When Elise Stefanik was grilling the university presidents, she reminded them that some of their predecessors testifying before this committee were forced to resign. She seems very proud of her power in that respect. How did your testimony go over with the Republicans on the committee?

DC: I don’t think they appreciated it all that much, I have to say, especially the chair of the committee. But I’m sure Joe McCarthy didn’t appreciate it when people went after him, but eventually he was censured. Eventually people recognized that he had gone too far, and he was censured, and it’s going to be a while, I think, before that happens to this committee–but not soon enough.

JW: The Harvard interviews with Muslim students on campus found that a lot of them felt ‘unsupported,’ they said, by Harvard administrators as they mourned loved ones who had died in Gaza. Quoting from the report, “The feeling over and over again for Palestinian students is that their lives don’t matter as much.” That’s what one student told the task force. Now, you’re not saying the university should ignore this issue?

DC: No.  I think universities are in a very tough spot. I think the toughest job in America these days is to be a president of a university. I think the best thing that universities can do is encourage dialogue across difference, police protests where they become violent or where people are blocking access or in physical ways impeding the work of the school, but otherwise educate students about the importance of people being free to express their views on issues of public concern and learning to tolerate the expression of views with which you disagree. I just think we shouldn’t expect universities to be able to suppress any speech that might offend Palestinians, or any speech that might offend Jewish students because otherwise the students are not going to be learning what is critical to learn to be a citizen in this country.

And there’s going to be a tremendous amount of chilling effect on speech. And you see that across the country right now, particularly with respect to pro-Palestinian speech because it is not just administrators scared of Congress who are suppressing speech more aggressively, but the President of the United States seeking to deport people for doing nothing more than speaking out in favor of Palestinian rights. We are a country that should be strong enough to tolerate open expression of views on issues that people feel deeply and care deeply about. We need to get better at doing that. And the answer to our discomfort with it is not to file a complaint and suppress speech.

JW: David Cole – he testified about anti-Semitism and freedom of speech on campus before the House Committee on Education last week. David, thanks for all your work — and thanks for talking with us today.

DC: Thanks for having me, Jon.

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Jon Wiener: Trump’s partnership in Washington with his biggest donor Elon Musk is coming to an end. And the richest man in the world, who made the biggest campaign contribution in history, is going home – the clear loser in that affair. For comment, we turn to David Nasaw. He’s written bestselling biographies of William Randolph Hearst, Andrew Carnegie, and Joseph P. Kennedy. He’s an emeritus professor of history at the CUNY Grad Center. His most recent book is The Last Million: Europe’s Displaced Persons from World War to Cold War. We talked about it here. He writes for The New York Times op-ed page, The Washington Post and The Nation. We reached him at home today in Manhattan. David, welcome back.

David Nasaw: Thank you. Glad to be here.

JW: You called it “a bromance.” Remember what Trump said about Musk in his victory speech on election night?

DN: In his victory speech, he ignored, for the most part, his family, and his wife, and he went on and on about Elon. He said, “Elon, you are a star.”

JW: Then Elon moved into Mar-a-Lago. Have I got that right?

DN: Elon began as the best buddy. He moved to Mar-a-Lago. He had his own little cottage. He sat in on the interviews with potential cabinet members and never missed a photo op. He was omnipresent, but as the best buddy. And he fooled us all, I think, because his official title was going to be the head of DOGE. But DOGE was going to be a committee, and this was in the executive order that created it. It was going to be an advisory committee that would issue a report after 18 months, and that report would outline saving that could be made in personnel and in grants. No one knew – I don’t think Trump knew this, Musk was at the time putting his people into government in the agencies that he would later decimate with staff cuts and with program cuts. And he did this so that his agents could take control of the hardware and the software and be able to amass all of this information that would later be used to identify these programs that would be cut and identify the individuals who would be dismissed.

JW: At the beginning, Trump was completely positive about all this. What was it that he said on social media after the first meeting of the cabinet?

DN: He said, “We’re extremely happy with Elon.” And then at that first cabinet meeting, which had to have been a total embarrassment for everybody sitting there, he went around the room, and everybody talked about how much they loved Elon.

JW: You predicted in a New York Times op-ed early on here that the bromance would not last. Because you said, “You can’t fit two megalomaniacs into the same room, at least not for long.” Is that what happened? Why exactly did Musk leave town?

DN: Musk left town for two reasons. I think that the dominant reason was that he realized that nobody was paying attention to him anymore. There were a number of reasons for this. I think it began the day after the inauguration when Musk broke the first rule of Trumpland, say no ill about the president or his policies or his television appearances or anything he does. The day after the inauguration, Trump had this triumphant, Trumpian, spectacular, in which he welcomed Sam Altman, Musk’s rival in AI to the White House, and said, “We are delighted that Mr. Altman and his partners are going to invest $100 billion in data centers and in generating electricity to power the computers at those data centers. This is the beginning of the new MAGA world.” And Musk waited a little bit, and at 11 o’clock that night, he posted his take on all this. He said, ‘This is a sham. This is ridiculous. These guys don’t have $100 billion between them. This is never going to happen.’ Now, you don’t do that. And that was the beginning.

JW: And it wasn’t just Trump. Republicans in Congress were afraid of Musk because of his ability to fund candidates who might challenge them in a primary if they crossed Musk or Trump. But that threat of Musk’s became less potent after the Wisconsin Supreme Court election, the beginning of April. Remind us what happened in Wisconsin.

DN: Musk was going to show his power and his allegiance to Trump by donating, I think the figure was $20 million to the Republican candidate for the State Supreme Court open seat in Wisconsin. Musk not only gave $20 million but made a personal appearance in Green Bay in which he hopped all over the stage, barely mentioning the Republican candidate, but talking about how wonderful Trump was. And if this Republican candidate for the Wisconsin State Supreme Court was defeated by the Democrat, ‘the future of civilization’ was at stake. Well, what happened? Musk’s millions, Musk’s persona, Musk’s image was enough to frighten many more Democrats to the polls than encourage Republicans.

JW: We did a segment here with John Nichols in Madison that week. He reported about how the Democratic ad campaign was called ‘the People v. Musk’ – it didn’t mention the candidate they were running against. The slogan was, “Don’t let Elon Musk buy the Wisconsin Supreme Court.” Trump had carried Wisconsin by a point, 50 to 49.  In that April election where Musk funded the Republican, he lost by 10 points, 45 to 55. So that showed the political–what shall we call it–failure, weakness, of Elon Musk as a funder of candidates.

DN: Trump and the Republicans withstood Musk’s antics from January 20th to April 1st because they wanted Trump’s money in the midterms and in the next presidential election. But what happened in Wisconsin was it became abundantly clear that Musk was a political liability, and Musk’s millions were a political liability rather than an asset. On April 2nd, the next day, Politico reported Trump had told his top advisors that Musk wasn’t going to be there very long. And he wasn’t.

JW: There was that day in mid-April when Trump announced that he wanted a change in the acting commissioner of the IRS. What’s the story there?

DN: Musk didn’t get the hints that he was a political liability, and he should have. Every cabinet member was complaining about him. Republicans, when they went home to hold town halls, one of the reasons why those town halls erupted was people wanted the Republican congressmen to speak out against Musk, and they were afraid to do so. So the time had come for Musk to go home.
In late April, Trump made that abundantly clear when he replaced his acting IRS commissioner, Musk’s choice, with the choice of Treasury Secretary, Bessent. And that was a slap in the face that Musk couldn’t abide. But Musk had to understand he was not going to be the co-president.

JW: And then Musk became the target of that grassroots campaign against Tesla. How impressive has the Tesla takedown movement been?

DN: There were two things that were going on. A lot of the people who had bought Teslas were the same people who had bought Priuses 10 years earlier. And they bought them because they were going to save the planet. So they skewed a little bit to the left. It was these people who were outraged, and not only in the United States, but through Europe, in Germany, France, in the UK. Tesla sales went way down, and Tesla vandals went way up. There was a movement to put stickers on your bumper saying, “I’m sorry, I don’t support the man.” Now, two things happened here. Not only did Musk lose billions of dollars and scare the daylights out of investors, stock owners and his board, but the nation and the Republicans and the White House began to see just how powerful was the anti-Musk sentiment, not only in this country, but across the globe.

JW: I just looked up the reports on this, quarterly profits at Tesla were down 70% for the first quarter of 2025. Tesla said it had suffered the biggest drop in sales in its history in that quarter, delivering 50,000 fewer vehicles than it had in the previous year’s first quarter. The plan was to bolster the Tesla brand. They introduced the new Tesla Cybertruck. Now it certainly succeeded at becoming the most recognizable new vehicle on the streets in decades. How is the Tesla Cybertruck doing?

DN: The Cybertruck was an extraordinary flop in every way. It was frighteningly expensive. It was impossible to repair, and its utility was meaningless. I mean, it was an armored pickup truck, and who needs an armored pickup truck? One of the reasons Musk went to Washington, I think, was to make sure that all the suits against Tesla for its cars blowing up and for a variety of other things would be dropped. And they were, but that didn’t help the bottom line.

JW: Yeah, I checked the numbers on the Cybertruck. Musk had announced that the Cybertruck would sell 250,000 units in its first year. And in its first full year of sales, it sold less than 40,000. The math on that is 84% short of expectations. But I think Musk is still the richest person in the world. You could look up who’s the richest person in the world today at Forbes, it said he’s still number one, but his wealth has fallen drastically. Just a few months ago, right after Trump won the election, Musk had $486 billion. Today it’s only a little over $400 billion, so he’s lost something like 80 billion since he went to Washington, and this came after he spent $288 million on the election.

DN: Yeah. We shouldn’t celebrate his downfall. He will come out of Washington a winner in the long run. Because Starlink and SpaceX, and now it looks like The Boring Company, B-O-R-I-N-G, are going to get government contracts worth billions. Now, I think that money would have gone to Musk whether he was in Washington or not. And while the government contracts are billions of dollars are going to be headed Musk’s way, all of the regulatory agencies, which watched over SpaceX, which watched over Boring, which watched over Tesla have been disarmed. So Musk and his companies will be on their own. You look at some of the – Trump has now, what? The exploration of Mars into his budget plans. Why? He’s going to build a Golden Dome. Who’s going to build that Golden Dome? The transportation secretary is going to, thank God, redo communication systems between ground and air. Verizon had that contract, but Tesla’s going to get it. Starlink satellites are going to provide internet services across this country replacing hardwired connections.

JW: Are there some lessons here? The clearest one is that the richest man in the world can’t buy an election victory — or at least not in Wisconsin. Maybe you found another lesson.

DN: Our democracy is in trouble. There is no way to skirt around that reality. We’re heading in frightening directions towards autocracy.  But one bright light, at least for me, was that an unelected billionaire who wanted to be co-president was shown the door – because there can only be one president, whether we like him or not, and that president is the one we elect.

JW: “Elon Musk thought he could break history. Instead, it broke him.” That’s the title of David Nasaw’s op-ed at The New York Times. David, thanks for talking with us today.

DN: My pleasure.