The College Presidents Were Right About Free Speech

This week three college presidents were called before Congress to defend their universities over charges that they were allowing antisemitism on their campuses. They tried to defend free speech, but their defense of it has caused serious blowbacks from politicians and others (who seem to believe antisemitic speech should not be allowed). The college presidents were right, and their detractors were wrong. Free speech doesn't just mean speech you like, but also speech that you consider offensive (like antisemitism or other forms of bigotry). Offensive speech can (and should) be opposed, but not suppressed.

Jason Willick explains in this post in The Washington Post. Here is a small part of what he wrote:

Elite college presidents are under fire for their platitudinous responses this week to high-dudgeon questioning by Rep. Elise Stefanik (R-N.Y.) over whether calls for “genocide of Jews” violate the schools’ policies. Stefanik demanded yes-or-no answers, but the presidents of Harvard University, the University of Pennsylvania and MIT gave conditional ones, with Penn’s president calling it a “context-dependent decision.”

The episode has the makings of a turning point in the culture wars over higher education.

Justified concern about American campus radicalism cannot obscure the fact that the presidents were objectively right on the free-speech merits. Universities that claim to be forums for free inquiry should not promise Congress that they will punish students or faculty for constitutionally protected speech. Private universities are not bound legally by the First Amendment, but most have committed themselves to abiding by its spirit and meaning.

Like racist, sexist, homophobic or anti-Muslim speech, antisemitic speech is generally constitutionally protected. To legally constitute harassment, speech must be so pervasive that it interferes with someone’s ability to access education — think of a mob that follows someone around campus or blocks a building. An isolated outburst, social media post or protest chant doesn’t meet that threshold.

Even speech endorsing violence in the abstract is protected. This might seem surprising, but it’s well-established law. Speech crosses into incitement only if it is both intended to cause violence and likely to cause violence in the imminent future. As the Supreme Court affirmed in 1969’s Brandenburg v. Ohio, advocating “the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.”

Stefanik’s questioning was effective because calling for the genocide of Jews shocks the conscience. But even the most committed antisemites are rarely so blunt. As Senate Majority Leader Charles E. Schumer (D-N.Y.) explained in a speech last week, they hide behind other terms and tropes. Stefanik suggested in her questioning that the term “intifada,” referring to violent Palestinian uprisings, calls for genocide. Others suggest that the Hamas-favored slogan “from the river to the sea, Palestine will be free,” is genocidal in its intent. Still others might consider “anti-Zionism” writ large to be in that category, because Israel is the only majority-Jewish nation and its enemies have shown their willingness to use genocidal means to destroy it.

But these terms, in isolation, clearly enjoy First Amendment protection. If universities announced policies of punishing expression deemed genocidal — in the absence of harassment or incitement of imminent violence — they would be committing themselves to refereeing the meaning of various anti-Israel slogans associated with the Palestinian movement.

And not only anti-Israel slogans. Speech supportive of Israel’s war in Gaza could also be deemed genocidal by activists; see how the University of Southern California briefly barred a professor from campus for saying Hamas members should be killed. Creating a new “genocide” category of punishable speech would suppress and distort debate on the Israel-Gaza war. Debates about China and Russia, also accused by some of genocide, would also be chilled.