The timid legal responses given last week by three university presidents at a House committee hearing investigating the state of anti-Semitism on American college campuses generated widespread revulsion across the partisan divide. When none of the presidents – representing Harvard, the Massachusetts Institute of Technology and the University of Pennsylvania – could provide a simple answer to Rep. Elise Stefanik, a Republican from New York, asking whether “calling for the genocide of the Jews” was equivalent to “bullying or harassment,” many prominent Democrats joined Republicans in denouncing the testimony.
“I am not a fan” of Ms. Stefanik, the Harvard Law professor Laurence Tribe She said on social media, “but I’m here with her.” When one of Donald Trump most ardent detractors one of his men applauds fiercest defendersyou know that some kind of extremely rare political singularity has been achieved.
Critics are right to note the hypocrisy of university leaders who have come belatedly to embrace a version of free speech absolutism that tolerates calls for Jewish genocide after years of punishing far less objectionable speech deemed offensive to other minority groups . In 2021, for example, MIT received a speaking invitation from a geophysicist who had criticized affirmative action. Harvard and Penn to appear at the bottom of the annual free speech rankings of the Foundation for Individual Rights and Expression (of which I am a senior fellow).
But two wrongs don’t make a right. If the problem with university speech codes is the selectivity with which universities penalize various forms of bigotry, the solution is not to expand the university’s power to punish expression. It means completely abolishing linguistic codes.
Universities have a critical role to play in promoting a culture of free and open debate, and presidents were right to draw a distinction between speech and conduct. Threats directed at individual students are inconsistent with the university’s goal of fostering a productive educational environment, let alone the law. Students can and should face disciplinary action and even expulsion for certain behaviors: acts of violence, “real threats” (defined by the Supreme Court as “a serious expression of an attempt to commit an act of unlawful violence against a particular individual or group of individuals”) and discriminatory harassment (which the Court outlines as behavior “so severe, pervasive and objectively offensive that it effectively prevents the victim’s access to an educational opportunity or benefit”). Students can and should also be punished for interrupting classes, occupying buildings or using the so-called heckler’s veto, in which they prevent a speaker from being heard.
But students should not be punished for speech protected by the First Amendment – even for something as hateful as a call to genocide.
The central problem with restrictions on hate speech is that it is often debatable, for example, what amounts to a call to genocide, and university administrators are at a disadvantage to adjudicate such debates. When Stefanik asked university presidents whether “calling for the genocide of the Jews” was a violation of their codes of conduct, she was referring to three specific sentences that pro-Palestinian protesters chant during their demonstrations: “Globalize the Intifada,” “There is only one solution: the revolution of the Intifada” and “From the river to the sea” (short for “From the river to the sea, Palestine will be free”). Although I happen to believe that all three support violence against Jews – and that the last, in his call for the elimination of the territory between the Jordan River and the Mediterranean Sea from Israel, tacitly endorses genocide – there are people who sincerely believe that these are calls for peaceful coexistence.
Furthermore, many people who say these phrases are simply ignorant. There is trial that an incredibly large number of students who now say “from the river to the sea” seem not to know what the phrase means – or even which river and sea they are referring to. Asking schools to determine whether the adoption of such phrases constitutes a violation of university policy puts administrators in the untenable position of literary commissioners, evaluating the “true” intent of these and various other statements.
Regardless of our politics, we should all be cautious about giving educational institutions even greater power to enforce rules prohibiting “hate speech” (a concept that has no value in American jurisprudence), because we all run the risk of the risk of colliding with them. Many pro-Israel students and activists revealed university presidents during Stefanik’s questions, but what can prevent the ban against “genocide” threats from being used to silence them? Accusations have repeatedly been made over the past two months that Israel is committing “genocide” against Palestinians in Gaza. It doesn’t matter that such claims are completely unfounded. If abstract expressions of support for “genocide” were prohibited on college campuses, any student or invited speaker who supports the Israeli campaign to destroy Hamas could be accused of enabling “genocide” against Palestinians and subjected to punishment at the whim of some university bureaucrat.
University of Southern California professor John Strauss was recently accused of racism and xenophobia after telling a gathering of pro-Palestinian student protesters: “Hamas is a killer. This is all I am. Everyone should be killed, and I hope everyone is.” After a deceptively edited video containing only the last sentence of his remarks went viral, a petition circulated demanding that Mr. Strauss be fired and the university restrict him to remote teaching for the remainder of the semester. (He was eventually allowed to return to campus, and the university maintains that the restrictions were not punitive.)
Americans were rightly appalled by the open expression of anti-Semitism at elite universities in the aftermath of October 7th. As troubling as this revelation was, we can only address the problem if we have the ability to recognize it. By its nature, censorship obscures; How can we address the radicalization of professors and the political indoctrination of their appointees if we cannot hear what they have to say?
“The university is the home and sponsor of critics; it is not itself the critic,” declared the Kalven Report, a seminal statement of the value of academic institutional neutrality published by the University of Chicago in 1967. The report noted that a constructive college experience would necessarily be “shocking.”
The test of a liberal society is how we deal with this disruption, not how we avoid it.
James Kirchick (@jkirchick) is the author of “Secret City: The Hidden History of Gay Washington,” a contributing writer to Tablet Magazine and a senior fellow at the Foundation for Individual Rights and Expression.
Original photography by Andyworks and MicroStockHub/Getty Images
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