Campus Speech Codes Should Be Abolished
The tentative, lawyerly answers given last week by three university presidents at a House committee hearing investigating the state of antisemitism on America’s college campuses have 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 muster a straightforward reply to the question from Representative Elise Stefanik, Republican of New York, about whether “calling for the genocide of Jews” amounted to “bullying or harassment,” many prominent Democrats joined Republicans in denouncing the testimony.
“I’m no fan” of Ms. Stefanik, the Harvard law professor Laurence Tribe said on social media, “but I’m with her here.” When one of Donald Trump’s most ardent detractors applauds one of his most staunch defenders, you know some sort of vanishingly rare political singularity has been achieved.
Critics are correct to note the hypocrisy of university leaders who have belatedly come 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 instance, M.I.T withdrew a speaking invitation from a geophysicist who had criticized affirmative action. Harvard and Penn appear at the very bottom of the annual free speech rankings of the Foundation for Individual Rights and Expression (where I am a senior fellow).
But two wrongs don’t make a right. If the problem with campus 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’s to abolish speech codes entirely.
Universities have a vital role to play in fostering a culture of free and open debate, and the presidents were right to draw a distinction between speech and conduct. Threats directed at individual students are inconsistent with a university’s goal of fostering a productive educational environment, not to mention against the law. Students can and should face disciplinary action and even expulsion for certain behavior: acts of violence, “true threats” (defined by the Supreme Court as “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”) and discriminatory harassment (which the court delineates as behavior “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”). Students can and should also be punished for disrupting classes, occupying buildings or employing the so-called heckler’s veto, whereby they prevent a speaker from being heard.
But students should not be punished for speech protected by the First Amendment — even something as odious as a call for genocide.
The central problem with restrictions on odious speech is that it’s often debatable, for example, what amounts to a call for genocide, and university administrators are poorly positioned to adjudicate such debates. When Ms. Stefanik asked the university presidents whether “calling for the genocide of Jews” constituted a violation of their codes of conduct, she was referring to three specific phrases that pro-Palestinian protesters chant at their rallies: “Globalize the intifada,”“There is only one solution: Intifada revolution” and “From the river to the sea” (short for “From the river to the sea, Palestine will be free”). While I happen to believe that all three advocate violence against Jews — and that the last one, in its call for a territory between the Jordan River and the Mediterranean Sea expunged of Israel, tacitly endorses genocide — there are people who sincerely believe that these are pleas for peaceful coexistence.
In addition, many people who spout these phrases are just plain ignorant. There is evidence that a shockingly large number of students now saying “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 espousing such phrases constitutes a violation of university policy puts administrators in the untenable position of literary commissars, assessing the “true” intent of these and sundry other statements.
Regardless of our politics, we should all be wary of giving educational institutions even greater power to enforce regulations barring “hate speech” (a concept with no standing in American jurisprudence), because we are all at risk of falling afoul of them. Many pro-Israel students and activists reveled in Ms. Stefanik’s grilling of the university presidents, but what is to stop a prohibition against threats of “genocide” being used to silence them? Accusations that Israel is committing a “genocide” against the Palestinians of Gaza have been issued repeatedly over the past two months. It doesn’t matter that such claims are utterly baseless. Were abstract expressions of support for “genocide” to be prohibited on college campuses, any student or invited speaker who supports Israel’s campaign to destroy Hamas could be accused of enabling “genocide” against Palestinians and subjected to punishment at the whim of some university bureaucrat.
The University of Southern California professor John Strauss was recently accused of racism and xenophobia after he said to a gathering of pro-Palestinian student protesters: “Hamas are murderers. That’s all they are. Every one should be killed, and I hope they all are.” After a deceptively edited video containing just the final sentence of his remarks went viral, a petition circulated demanding that Mr. Strauss be fired and the university restricted him to remote teaching for the rest of the semester. (He was eventually allowed to return to campus and the university maintains that the restrictions were not punitive.)
Americans have been justifiably appalled by the open expression of antisemitism at elite universities in the aftermath of Oct. 7. As troubling as this revelation has been, we can confront the problem only if we have the ability to recognize it. By its nature, censorship obscures; how can we deal with the radicalization of the professoriate and the political indoctrination of their charges if we can’t 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 landmark statement of the value of academic institutional neutrality issued by the University of Chicago in 1967. The report noted that a constructive university experience would necessarily be “upsetting.”
The test for a liberal society is how we deal with that upset, not how we avoid it.
James Kirchick (@jkirchick) is the author of “Secret City: The Hidden History of Gay Washington,” a contributing writer at Tablet Magazine and a senior fellow at the Foundation for Individual Rights and Expression.
Source photographs by Andyworks and MicroStockHub/Getty Images
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