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This week, a staff editorial in the Harvard University student newspaper The Harvard Crimson with ÃÛÖ­ÏãÌÒ's inclusion of Harvard in our list of the 12 "Worst Colleges for Free Speech." Our list, which appeared on The Huffington Post, has generated a good amount of , student press coverage, and attention in major media outlets. 

Of course, we understand that folks may disagree vehemently with us when their school appears on the list, and that they may take issue with the criteria we use for naming our "Worst 12." However, the points raised by the Crimson piece are worth addressing in detail here. That's because Harvard absolutely deserves criticism for its record on free speech: Just take a look at the cases at Harvard in which FIREhas been involved over the years. In these and other matters, Harvard has established a pattern demonstrating that an anti-free speech culture exists on campus. Even worse, students, faculty, and administrators often fail to grasp the free speech principles in play in a given situation.

In the case of Professor Subramanian Swamy, several hundred people signed a student-led petition demanding that the administration "repudiate Swamy's remarks and terminate his association with the University," after Swamy wrote a controversial column for a newspaper in India about how to "negate the political goals of Islamic terrorism in India." Meeting speech with more speech is always the correct answer, but calling for a professor's ouster for expressing his views (however disagreeable they may be to some, or many) is a regrettable call for formal censorship. When Harvard Summer School Dean Donald H. Pfister initially stated that the university would give the case "serious attention," FIREweighed in with a letter calling for respect for Swamy's right to free speech. The Crimson correctly points out that Harvard's administration ultimately stood up for Swamy's right to express himself as he did, and took no action against him. The reaction of a good chunk of the student body, however, tells a different story about prevailing notions of the importance of free speech on campus. 

Worse still, Harvard's Faculty of Arts and Sciences (FAS) subsequently voted to cancel Swamy's scheduled courses for summer 2012, with multiple faculty members rationalizing that his expression constituted "hate speech" that incited others to violence. This is an indefensible result, as we explained in our letter to FAS Dean Michael D. Smith. After quoting Harvard's "Free Speech Guidelines," adopted by FAS in 1990, we wrote: 

The action against Swamy stands in sharp and unflattering contrast to this admirable and appropriate understanding of the importance of freedom of expression in the academic community. If members of the Harvard community are given to understand that Harvard will fire them for the views they express—taking a side in any armed conflict, for example, or supporting a political figure or country that others believe has "abrogate[ed] human rights"—they likely will self-censor. Ultimately, Harvard will come to be seen as a place that people in important or influential positions must avoid. These are precisely the results that a university dedicated to excellence and intellectual freedom must discourage.

Further, the op-ed comes nowhere near the careful definition of unprotected "incitement" announced by the Supreme Court. According to the Supreme Court, for speech to be considered "incitement," it must be "directed to inciting or producing imminent lawless action and [be] likely to incite or produce such action" (emphasis added). Brandenburg v. Ohio, 395 U.S. 444 (1969). See also Hess v. Indiana, 414 U.S. 105 (1973) (holding that a protestor who shouted, "We'll take the fucking street later" was not guilty of incitement because his "threat" "amounted to nothing more than advocacy of illegal action at some indefinite future time.").

Not only did FAS effectively fire Swamy for his protected speech, it provided a dangerous precedent against faculty speech in doing so. Professor Diana C. Eck, one of those responsible for the FAS decision, was by the Crimson as follows: 

"Swamy's op-ed clearly crosses the line by demonizing an entire religious community and calling for violence against their sacred places," Eck said, adding that Harvard has a moral responsibility not to affiliate itself with anyone who expresses hatred towards a minority group. "There is a distinction between unpopular and unwelcome political views." 

As my colleague Adam Kissel said in response: "Did Professor Eck really say, ‘There is a distinction between unpopular and unwelcome political views'? How exactly would one objectively define that difference?" That such notions are allowed to prevail uncorrected among the Harvard faculty is sad.

The Crimson editorial also takes issue with our characterization of Harvard's for the Class of 2015. Torch readers will recall that this pledge committed incoming freshmen to building a "place where all can thrive and where the exercise of kindness holds a place on a par with intellectual attainment," and informed them that they are "expected to act with integrity, respect, and industry, and to sustain a community characterized by inclusiveness and civility."

The Crimson dismisses the pledge as "a symbolic and largely insignificant, albeit irritating, addition to the first-year routine." I would argue, however, that there is nothing symbolic about pressuring first-year students, as soon as they step on campus, to pledge themselves to expansive, undefined values that carry full institutional support. There is a reason that one of ÃÛÖ­ÏãÌÒ's Guides is specifically about "First-Year Orientation and Thought Reform on Campus"; incoming freshmen are more impressionable and susceptible to institutional pressure to accept certain values and beliefs. In the face of that reality, it is inappropriate for Harvard to fashion a civility pledge and then pressure freshmen to sign it.

Furthermore, while these types of pledges sound nice in theory, what will "respect," "civility," and "inclusiveness" mean in practice when it comes to regulating the behavior and expression of students? How far do the stated values of the pledge go, and how do students determine whether particular actions or decisions contradict a classmate's, an administrator's, or someone else's conception of those values? One can easily perceive the chilling effect on discourse and debate that can come out of this confusion. The last thing Harvard should want is to have students walking around on eggshells from the moment they matriculate, afraid to offend one another or the administration. As FIREPresident Greg Lukianoff wrote in the The Huffington Post regarding the civility pledge:

Higher education is at its best when it understands that bold, free-wheeling intellectual experimentation is what you want to cultivate if you want a genuinely innovative and dynamic environment. ... Harvard should know better than to promote unreflective certainty right at the time when students most need to be embarking on the truly difficult work of challenging their own assumptions and learning to think for themselves.

Finally, I would be remiss if I did not highlight these points from the Crimson editorial:

If a threat to freedom of speech exists on campus, it comes less from the strong arm of the President's office, and more from the mentality, enthusiasm, and self-censorship of students themselves.

[...]

The inclinations and reactions of students therefore do far more to hinder the fullest expression of freedom of speech on campus than the actions taken by our administration.

There may be some truth to this—after all, FIREis not arguing that administrators alone are responsible for Harvard's free speech culture, and students may well be contributing to it through self-censorship and censorship of their classmates. But this line of argument misses the point. If Harvard's students are censoring themselves and each other, it seems as though they have learned this lesson from the environment in which they find themselves. By maintaining a campus culture that institutionalizes and encourages censorship of uncomfortable, challenging, or minority viewpoints, Harvard has allowed this chilling to take place.  

Again, take a look at the list of FIREcases at Harvard. Consider what a student may think, in the face of this history (much of it recent), about the prospect of engaging in speech or expressive activity that pushes the envelope on a particular topic. Consider also the many other incidents over the years, as highlighted in by FIREChairman and Co-founder Harvey Silverglate last month, which includes discussion of the regrettable law school incident involving Dean Martha Minow in 2010.

One of the comments left under the , under the screenname "shameful," perhaps sums it up best:

There is only one correct view on most issues. Reality may be the one oppressing conservatives. But it's okay, because why do we have to respect and support those who are homophobic, sexist, racist, classist, and otherwise unfit to function in a world that is innately progressive as evidenced by the fact the clock. keeps. ticking.

There is only "one correct view on most issues"? Who gets to decide what views are "sexist" or "racist," and thus not fit for airing in the marketplace of ideas? Don't these questions portend the marginalizing of an increasingly wide swath of protected speech? If the author of this comment is a Harvard student (and there would seem to be a good chance that he or she is), then he or she appears to have learned the lessons of Harvard well.