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First Amendment News is a weekly blog and newsletter about free expression issues by Ronald K. L. Collins and is editorially independent from ��֭����.

When it comes to speech on college campuses, the problem is one with a vintage flavor. Simply recall (if you can) what Chief Justice Earl Warren wrote in his 1957 opinion in Sweezy v. New Hampshire (a case successfully  by professor ): “The essentiality of freedom in the community of American universities is almost self-evident.” 

Note that it was a plurality opinion — and note also his use of the word “almost.” In other words, doubts lingered.

Four decades later, in a book way ahead of its time, the late  awakened our world to free speech issues that would define the world in decades to come. The book was “.” In it, Bob (a free speech champion and friend) wrote:

When the Carnegie Foundation for the Advancement of Teaching surveyed university presidents for a study in the late 1980s entitled campus tensions, more than half the respondents noted that racial intimidation or harassment was a serious problem on their campuses. The National Institute Against Prejudice and Violence, which has the most detailed database, cited at least 250 campuses at which acts of racial hatred occurred in the period 1986-89. The institute has elsewhere reported that one in five minority students encounters some form of physical or psychological racial harassment at least once a year.

And so the same problem resurfaces, but now in a new context, growing out of the Israel-Hamas War and the free expression issues raised by it: those of antisemitism and hate speech. In a recent Politico Magazine , professor Eugene Volokh said: 

I’m worried that there is pro-Palestinian speech being suppressed. I’m worried that there’s some pro-Israeli speech being suppressed… I also think that there are some things that are being too much tolerated. 

Mindful of all of the above and much more, what follows is an op-ed by , author of “” and “,” regarding the recent hearings on campus antisemitism and the reactions to statements by the university presidents on the matter.

Consistent with the principle of a free and open exchange of ideas, responsible opposing views are invited and will be considered for possible posting. — rklc@thefire.irg 

At a contentious  on December 5, the presidents of three major universities unequivocally condemned antisemitism and hate speech while standing firm in defense of free speech. In a furious backlash, elected officials, alumni, students and donors have unleashed scathing criticism, going so far as to open a congressional investigation and demand that all three resign.

The three presidents,  of the University of Pennsylvania,  of Harvard, and  of Massachusetts Institute of Technology, testified before the House Committee on Education and the Workforce at a hearing entitled “.”

View video

The episode reveals not only how little our elected officials and the American people understand about the concept of protected free speech at our colleges and universities; it shows how, in a free society, confidence in the value of protecting all ideas and viewpoints — even those we despise — is eroding.

Nadine Strossen’s ‘non-emergency speech’

Public colleges and universities are bound by the First Amendment. Private colleges and universities, in their written policies and handbooks (and in some states by legislation), generally guarantee students and faculty members the right to academic freedom and freedom of speech comparable to the First Amendment.

In her new book “,” Nadine Strossen, who served for 17 years as national president of the ACLU, provides a useful summary of current First Amendment law:

The First Amendment permits government to outlaw the speech that is the most dangerous, consistent with the “emergency” principle: speech that, considered in its overall context, directly, imminently causes or threatens specific serious harm… [On the other hand, the] First Amendment outlaws the censorship that is the most dangerous: restrictions based solely on disfavor of the speaker’s ideas, or on generalized, speculative fear that the speech might indirectly contribute to some future harm.

Strossen calls the latter “non-emergency speech.”

While non-emergency speech may potentially cause harm, Strossen explains that “it is dangerous to grant government the added latitude to punish speech with a less direct, imminent connection to potential harm” because “predictably, government (which is accountable to majoritarian and other powerful interest groups) disproportionately exercises any such discretion to suppress minority voices and views.” 

Strossen’s warning applies equally to public universities (which are an arm of the government) as well as to private universities, which rely on the support of the federal and state governments as well as donors and alumni, and who may be inclined to suppress unpopular views in order to protect their funding.

Consequently, whether students should be expelled or disciplined for expressing their views goes far beyond simply looking at the words they speak. It requires a serious examination of the context and circumstances surrounding the speech. The chants of protesters at a large rally screaming “Kill all the Jews,” while unspeakably vile and contemptible, would not “directly and imminently” cause or threaten specific serious harm when considered in their overall context.

Yet the same words spoken by someone holding a gun on the steps of a Jewish student center do pose a “direct and imminent threat” and should be stopped and punished by campus authorities and/or the government. What students say in the classroom should be treated differently than what they say at a campus rally or debate. Angry threats made to individual students should be treated differently than the same words written on a flyer or in an op-ed in the campus newspaper. 

The plight of Penn’s President Magill

Members of Congress and other critics of the college presidents apparently couldn’t be bothered with the nuances of these complex issues. In the midst of complaints that the presidents failed to adequately condemn antisemitism, scant attention has been paid to their opening remarks.

For example, Penn President Magill couldn’t have been more forceful in her  of antisemitism. Given the misleading and unfair criticism to which she was subjected and the immediate calls for her resignation, her balanced and comprehensive opening statement deserves to be considered in detail.

After summarizing her impressive credentials prior to becoming Penn’s president (executive vice president and provost of the University of Virginia, dean of Stanford Law School, professor of law at the University of Virginia, law clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg), she immediately and forcefully stated that she and Penn:

…are horrified by and condemn Hamas’s abhorrent terrorist attack on Israel on October 7th. There is no justification — none — for those heinous attacks. The loss of life and suffering that are occurring in Israel and Gaza during the ensuing war are heartbreaking. The pain extends to our campus. I know it from my daily conversations with our students, faculty, and staff, as well as parents and alumni.

Magill said she valued the opportunity to reaffirm her and Penn’s “unyielding opposition to antisemitism, and to outline the urgent, university-wide actions we are taking to combat this centuries-old and resurgent threat.” She also said her “first priority is to members of the Penn community and, above all, to their safety and support.” She continued:

I must also ensure that our academic mission thrives; that academic freedom and the free exchange of ideas endure; and that we swiftly address any violation of the law or our University’s policies. These are the priorities Penn is seeking to achieve in the actions I will discuss today.

She noted that prior to October 7, “antisemitism — a pernicious, viral evil — was already rising in our society, and global events have dramatically accelerated the surge. No place is immune, and campuses, including ours, have recently experienced an unacceptable number of antisemitic incidents. We are combating this evil head-on with immediate action.” She described how she “condemned antisemitism publicly, regularly, and in the strongest terms possible,” and wanted to:

reiterate my and Penn’s commitment to combating it. For decades our Division of Public Safety has learned from and worked with the Anti-Defamation League office in Philadelphia, and we are working closely with them, as well as local, state, and federal law enforcement to promptly report and investigate antisemitic acts against any member of the Penn community. Where we have been able to identify individuals who committed these acts in violation of existing University policy or law, we have initiated disciplinary proceedings and referred these matters to law enforcement where appropriate.

President Magill went into detail about how Penn has “acted decisively to ensure safety throughout and near campus.” Then she pointed out that like many communities around the world: 

Penn has also experienced protests, rallies, and vigils related to the terrorist attack and the subsequent war. Protest — and all it entails — has long been a feature of university life. Penn’s approach to protest is guided by the U.S. Constitution, outlined in decades-old open expression policies, and supported and upheld by trained Open Expression Observers. We recognize the right of peaceful protest and assembly, and we give broad protection to free expression — even expression that is offensive. At the same time, we have zero tolerance for violence or speech intended to incite it. Our public safety officers are present at every protest, rally, or vigil, trained in de-escalation techniques, and, if necessary, they are ready to act.

Magill also talked about “the challenges of fostering robust debate during difficult times,” how “in addition to respecting the right of protest, Penn is offering many ways for students to come together in classrooms and in small groups to discuss these issues,” how “educating citizens requires engagement with real-world challenges and hard topics — topics that often inspire passionate responses,” and how “university leadership must provide guardrails that encourage free and open expression while also ensuring a secure environment.” 

She outlined Penn’s new “Action Plan to Combat Antisemitism” and she announced that she had created a new student advisory group on the Jewish student experience.

Magill also noted the:

rising harassment, intimidation, doxing, and threats toward students, faculty, and staff based on their identity or perceived identity as Muslim, Palestinian, or Arab. Some have lost family members in this war, and many are worried about the safety of their loved ones in the region. Many are also afraid for their own safety, and the horrifying shooting of three Palestinian students in Vermont has only deepened their fears.

She said she was “appalled by and have publicly condemned these acts of harassment, threats, and intimidation. We are investigating all allegations, even when threats have come from outside our campus. We are providing resources and advice to assist individuals with online doxing, harassment, and threats.” 

And she has  a Presidential Commission on Countering Hate and Building Community “to empower our campus leaders to address antisemitism, Islamophobia, and hate in all forms, and to lay the groundwork for a stronger, more connected community.”

Magill ended her opening statements by reiterating that: 

[h]igher education institutions create knowledge, share it for good, and educate the next generation — missions that have never been more essential,” and noting that on Penn’s campus today many people are “engaged in serious and respectful conversation — despite disagreement — about difficult topics, including those related to the Israel-Hamas war.

Representative Elise Stefanik: ‘does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no?’

Most of the attacks on Magill focused on her exchange with Representative , Republican of New York. Stefanik noted that “there had been marches where students had chanted support for intifada, an Arabic word that means ‘uprising’ and that many Jews hear as a call for violence against them.” 

Stefanik asked Magill, “Does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no?”

Magill replied, “If the speech turns into conduct, it can be harassment.” 

Stefanik pressed the issue: “I am asking, specifically: Calling for the genocide of Jews, does that constitute bullying or harassment?”

Magill, who joined Penn last year with a pledge to promote campus free speech, replied, “If it is directed and severe, pervasive, it is harassment.”

Stefanik responded: “So the answer is yes.”

Trying to give complete rather than glib answers, Magill said, “It is a context-dependent decision, congresswoman.” Stefanik then exclaimed, “That’s your testimony today? Calling for the genocide of Jews is depending upon the context?”

After some more back and forth, Magill said, “It can be harassment,” to which Stefanik responded, “The answer is yes.”

Given the totality of Magill’s testimony, it is astonishing and disappointing that Gov. Josh Shapiro of Pennsylvania said he found her statements “unacceptable.” According to , he said: 

It should not be hard to condemn genocide, genocide against Jews, genocide against anyone else,” and “I’ve said many times, leaders have a responsibility to speak and act with moral clarity, and Liz Magill failed to meet that simple test. …There should be no nuance to that — she needed to give a one-word answer.

Shapiro, who is a nonvoting member of Penn’s board, urged the trustees to meet soon. CNN has reported that the board held an emergency meeting on Wednesday, December 6. No outcome has been announced.

“It’s unbelievable that this needs to be said: Calls for genocide are monstrous and antithetical to everything we represent as a country,” said White House spokesman Andrew Bates, according to The New York Times.

The Times also reported that , Democrat of Pennsylvania, did not mince words. “President Magill’s comments yesterday were offensive, but equally offensive was what she didn’t say,” he said in a statement. “The right to free speech is fundamental, but calling for the genocide of Jews is antisemitic and harassment, full stop.”

, a Pennsylvania Democrat, described the testimony as “a significant fail … There is no ‘both sides-ism’ and it isn’t ‘free speech,’ it’s simply hate speech,” he said in a statement. “It was embarrassing for a venerable Pennsylvania university, and it should be reflexive for leaders to condemn antisemitism and stand up for the Jewish community or any community facing this kind of invective.”

Did Magill’s critics actually listen to her testimony?

Did these officials actually listen to Magill’s testimony or did they just rely on truncated news reports and angry social media posts? In fact, Magill repeatedly and unequivocally condemned antisemitism and the Hamas attacks, and she said that calling for the genocide of Jews could constitute harassment under Penn’s policies. 

The Times also reported that , the chief of Apollo Group and the board chair at the Wharton School — Penn’s business school — wrote to the university’s board of trustees asking them to rescind their support for Magill. “How much damage to our reputation are we willing to accept?” he wrote. “The call for fundamental change at UPenn continues.” 

Within 24 hours, a petition demanding Magill’s resignation had attracted more than 3,000 signatures. Did Rowan and the 3,000 who signed the petition actually listen to all of her testimony before taking the extraordinary step of calling for her resignation?

Now Congress is threatening all three universities with a full-fledged investigation reminiscent of the HUAC and McCarthy hearings of the 1940s and 1950s that looked into communists and their “sympathizers,” questioning college professors under oath about their teaching, writing, and politics. Many were fired or forced to sign loyalty oaths.

On Thursday, Rep. Virginia Foxx, chair of the House Committee on Education & the Workforce, told :

[T]he Committee is opening a formal investigation into the learning environments at Harvard, UPenn, and MIT and their policies and disciplinary procedures. This investigation will include substantial document requests, and the Committee will not hesitate to utilize compulsory measures including subpoenas if a full response is not immediately forthcoming.

Stefanik is quoted as saying that after “this week's pathetic and morally bankrupt testimony by university presidents when answering my questions, the Education and Workforce Committee is launching an official Congressional investigation with the full force of subpoena power into Penn, MIT, and Harvard and others." 

Ominously, she did not specify what other colleges and universities would be targeted. “We will use our full Congressional authority to hold these schools accountable for their failure on the global stage,” she added.

Facing this barrage of threats and criticism, with her job on the line, Magill relented and  for her testimony:

In that moment, I was focused on our university’s longstanding policies aligned with the U.S. Constitution, which say that speech alone is not punishable… I was not focused on, but I should have been, the irrefutable fact that a call for genocide of Jewish people is a call for some of the most terrible violence human beings can perpetrate. It’s evil — plain and simple. In my view, it would be harassment or intimidation.

Enter Harvard President Claudine Gay

Harvard’s president, , has also come under fire from donors, students and alumni over her statements about whether calls for genocide of Jews would be a breach of Harvard’s code of conduct. Gay testified that this type of speech was “personally abhorrent to me” and “at odds with the values of Harvard.” But she added that Harvard gives “a wide berth to free expression, even of views that are objectionable,” and takes action “when speech crosses into conduct that violates our policies” governing bullying, harassment or intimidation.

The Times reports that  the student president of Harvard Hillel, said that “the testimony yesterday was a slap in the face, because there was a very easy clear right answer and she opted not to say that.” , the billionaire hedge fund manager and Harvard alumnus, called on all three presidents to resign, citing the exchanges over genocide. “It ‘depends on the context’ and ‘whether the speech turns into conduct,’ that is, actually killing Jews,” he  on X. “This could be the most extraordinary testimony ever elicited in the Congress. They must all resign in disgrace. If a CEO of one of our companies gave a similar answer, he or she would be toast within the hour.”

The day after the hearing, Harvard released this  from Gay: 

There are some who have confused a right to free expression with the idea that Harvard will condone calls for violence against Jewish students. Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account.

Her statement did not say what would constitute a threat, or whether chants of “There is only one solution: intifada, revolution” would meet the definition, as Stefanik argued during the hearing.

On ��֭����

The Times quoted a spokesman for the FIRE, a free speech advocacy group, who explained that whether speech rises to the level of harassment “is a complicated and fact-intensive issue” that stems from a pattern of targeted behavior. “For example, it’s hard to see how the single utterance Representative Stefanik asked about during the hearing — no matter how offensive — would qualify given this requirement,” the spokesman said. 

FIRE is correct. Take, for example, .” It begins by declaring that the “central functions of an academic community are learning, teaching, research and scholarship” and that by “accepting membership in the University, an individual joins a community ideally characterized by free expression, free inquiry, intellectual honesty, respect for the dignity of others, and openness to constructive change. The rights and responsibilities exercised within the community must be compatible with these qualities.”

The Harvard policy

The Harvard policy explains that the “rights of members of the University are not fundamentally different from those of other members of society,” suggesting that First Amendment norms apply, while adding that the University “has a special autonomy and reasoned dissent plays a particularly vital part in its existence.” All members of the University “have the right to press for action on matters of concern by any appropriate means” and the University “must affirm, assure and protect the rights of its members to organize and join political associations, convene and conduct public meetings, publicly demonstrate and picket in orderly fashion, advocate and publicize opinion by print, sign, and voice.”

Harvard University

Cambridge, MA

School Ranking

251 of 251

Due Process

Sexual misconduct: D

Non-sexual misconduct: F

Title IX: B

Speech Code

Yellow

Free Speech Climate

Overall score: 0

More Info

Furthermore, the University:

places special emphasis, as well, upon certain values which are essential to its nature as an academic community. Among these are freedom of speech and academic freedom, freedom from personal force and violence, and freedom of movement. Interference with any of these freedoms must be regarded as a serious violation of the personal rights upon which the community is based.

Finally, the policy makes clear “that intense personal harassment of such a character as to amount to grave disrespect for the dignity of others be regarded as an unacceptable violation of the personal rights on which the University is based.”

It is immediately apparent — and should have been apparent to the White House, members of Congress, Governor Shapiro, and the rest of the critics — that Magill and Gay were accurately reflecting the complex analysis required to determine when free speech crosses the line into prohibited harassment, threats, or violence.

Magill was indeed correct that “if the speech turns into conduct, it can be harassment,” that “if it is directed and severe, pervasive, it is harassment,” and therefore, calling for the genocide of Jews “can be harassment.”

She had the audacity to explain that it would depend on all the facts and circumstances.

Gay was indeed correct that calls for the genocide of Jews are “personally abhorrent” and “at odds with the values of Harvard.” And she was also correct that Harvard gives “a wide berth to free expression, even of views that are objectionable,” and takes action “when speech crosses into conduct that violates our policies” governing bullying, harassment or intimidation.

Apparently, her sin was trying to explain freedom of speech to Congress and the American people.

The Supreme Court and federal law make clear that for speech in the educational setting to constitute “harassment” sufficient to result in expulsion or other discipline, it  “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access . . . to an educational opportunity or benefit.”

Had Stefanik and her colleagues taken the time to familiarize themselves with the current law on free speech and framed their questions in terms of the legal definition of “harassment,” they would have found common agreement with all three presidents. Had all the critics done their homework instead of spreading misunderstanding about free speech on campus, they would have embraced and applauded how these university presidents skillfully condemned what they called the “pernicious, viral evil” of antisemitism and the “abhorrent” calls for genocide of Jews, while upholding “academic freedom and the free exchange of ideas” which ensure “a wide berth to free expression, even of views that are objectionable.”

Enter the American Association of University Professors

The American Association of University Professors’ policy, , adopted almost thirty years ago, reminds us that “[f]reedom of thought and expression is essential to any institution of higher learning” in order to inspire “vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.”

On a campus “that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed. Hostility or intolerance to persons who differ from the majority (especially if seemingly condoned by the institution) may undermine the confidence of new members of the community.” The AAUP notes:

In response to verbal assaults and use of hateful language, some campuses have felt it necessary to forbid the expression of racist, sexist, homophobic, or ethnically demeaning speech, along with conduct or behavior that harasses. Several reasons are offered in support of banning such expression. Individuals and groups that have been victims of such expression feel an understandable outrage. They claim that the academic progress of minority and majority alike may suffer if fears, tensions, and conflicts spawned by slurs and insults create an environment inimical to learning.

And while these “arguments, grounded in the need to foster an atmosphere respectful of and welcoming to all persons, strike a deeply responsive chord in the academy,” the AAUP acknowledges “both the weight of these concerns and the thoughtfulness of those persuaded of the need for regulation, rules that ban or punish speech based upon its content cannot be justified.”

The AAUP continues, “An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas — and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas, a university sets an example that profoundly disserves its academic mission.”

The AAUP cites what the Supreme Court stated when it criminal sanctions for offensive words:

[W]ords are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.

The AAUP further warns that a college or university: 

sets a perilous course if it seeks to differentiate between high-value and low-value speech, or to choose which groups are to be protected by curbing the speech of others. A speech code unavoidably implies an institutional competence to distinguish permissible expression of hateful thought from what is proscribed as thoughtless hate.

Moreover, the AAUP says, “banning speech often avoids consideration of means more compatible with the mission of an academic institution by which to deal with incivility, intolerance, offensive speech, and harassing behavior,” such as adopting and invoking “a range of measures that penalize conduct and behavior, rather than speech — such as rules against defacing property, physical intimidation or harassment, or disruption of campus activities,” the development of “courses and other curricular and co-curricular experiences designed to increase student understanding and to deter offensive or intolerant speech or conduct,” and condemning “manifestations of intolerance and discrimination, whether physical or verbal.”

The AAUP concluded by noting that:

[to] some persons who support speech codes, measures like these — relying as they do on suasion rather than sanctions — may seem inadequate. But freedom of expression requires toleration of “ideas we hate,” as Justice Holmes put it. The underlying principle does not change because the demand is to silence a hateful speaker, or because it comes from within the academy. Free speech is not simply an aspect of the educational enterprise to be weighed against other desirable ends. It is the very precondition of the academic enterprise itself.

The Free Speech Golden Rule

, former executive director of Human Rights Watch, was born in Nazi Germany and became a refugee at two years old when his family fled in 1939. He was national director of the ACLU at the time of the  when the ACLU defended the right of American Nazis to conduct a march in that predominantly Jewish community.

In his book “,” he explained why a Jew would defend the Nazis:

Because we Jews are uniquely vulnerable, I believe we can win only brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power. The restraints that matter most to me are those that ensure that I cannot be squashed by power, unnoticed by the rest of the world.  If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies.  I want to appeal to the world’s sense of justice. I want restraints that prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.

It is high time elected officials and other critics of free speech begin to embrace and defend the Free Speech Golden Rule: Protect the free speech of others as you would have them protect your free speech.

We are going down a very dangerous path if we set a precedent and empower government officials or college administrators to silence, expel, discipline, or criminally punish students for uttering hateful speech that most of us find vile and shameful but that falls short of legally proscribable incitement, true threats, or harassment. Armed with such awesome powers of censorship, there is no telling when different government officials or different college administrators with different political agendas will find what the rest of us say to be vile and shameful and silence and punish us. 

To defend ourselves, we must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.

Related

Books

• Jeffrey C. Sun, George S. McClellan, “” (3rd ed., Taylor & Francis, 2019)
• Keith Whittington, “” (Princeton University Press, 2018)
• Erwin Chemerinsky and Howard Gillman, “” (Yale University Press, 2017)
• Harvey A. Silverglate, David French, and Greg Lukianoff / Greg Lukianoff and William Creeley, eds., “FIRE’s Guide to Free Speech on Campus” (��֭����, 2nd ed. 2012)
• Timothy C. Shiell, “” (University Press of Kansas, 2nd ed., 2009)
• Robert M. O'Neil, “” (Indiana University Press, 1997)

Recent articles

• Piper Hudspeth Blackburn, “,” CNN (Dec. 7)
• Nico Perrino, “FIRE to Congress, university presidents: Don’t expand censorship. End it,” FIRE(Dec. 6)
• Susan Snyder and Joseph N. DiStefano, “,” Philadelphia Inquirer (Dec. 7)
• Megan Zahneis, “,” The Chronicle of Higher Education (Dec. 6)
• “New FIREsurvey suggests more than a million students investigated or punished for their speech,” FIRE(Dec. 6)
• Bianca Quilantan, “,” Politico Magazine (Dec. 5)