What the university presidents got right and wrong about antisemitic speech

As I watched the presidents of Harvard University, Massachusetts Institute of Technology and the University of Pennsylvania struggle last week to respond to harsh congressional questioning about the prevalence of antisemitism on their campuses, I had a singular thought: Censorship helped put these presidents in their predicament, and censorship will not help them escape.

To understand what I mean, we have to understand what, exactly, was wrong — and right — with their responses in the now-viral exchange with Rep. Elise Stefanik, R-N.Y. The key moment occurred when Stefanik asked whether “calling for the genocide of Jews” would violate school policies. The answers the presidents gave were lawyerly versions of “it depends” or “context matters.”

There was an immediate explosion of outrage, and the president of Penn, Elizabeth Magill, resigned Saturday. But this is genocide we’re talking about! How can “context” matter in that context? If that’s not harassment and bullying, then what is?

But I had a different response. I’m a former litigator who spent much of my legal career battling censorship on college campuses, and the thing that struck me about the presidents’ answers wasn’t their legal insufficiency but rather their stunning hypocrisy. And it’s that hypocrisy, not the presidents’ understanding of the law, that has created a campus crisis.

First, let’s deal with the law. Harvard, Penn and MIT are private universities. Unlike public schools, they’re not bound by the First Amendment, and they therefore possess enormous freedom to fashion their own custom speech policies. But while they are not bound by law to protect free speech, they are required, as educational institutions that receive federal funds, to protect students against discriminatory harassment, including — in some instances — student-on-student peer harassment.

Academic-freedom advocates have long called for the nation’s most prestigious private universities to protect free speech by using First Amendment principles to inform campus policies. After all, should students and faculty members at Harvard enjoy fewer free speech rights than, say, those at Bunker Hill Community College, a public school not far from Harvard’s campus?

If Harvard, MIT and Penn had chosen to model their policies after the First Amendment, many of the presidents’ controversial answers would be largely correct. When it comes to prohibiting speech, even the most vile forms of speech, context matters. A lot.

For example, surprising though it may be, the First Amendment does largely protect calls for violence. In case after case, the Supreme Court has held that in the absence of an actual, immediate threat — such as an incitement to violence — the government cannot punish a person who advocates violence. And no, there is not even a genocide exception to this rule.

But that changes for publicly funded universities when speech veers into targeted harassment that is “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” First Amendment scholar Eugene Volokh has helpfully articulated the difference between prohibited harassment and protected speech as often the difference between “one-to-one speech” and “one-to-many speech.” Legal commentator David Lat explained further, writing, “If I repeatedly send antisemitic emails and texts to a single Jewish student, that is far more likely to constitute harassment than if I set up an antisemitic website available to the entire world.”

As a result, what we’ve seen on campus is a mixture of protected antisemitic (as well as anti-Islamic) speech and prohibited harassment. Chanting “Globalize the intifada” or “From the river to the sea, Palestine will be free” at a public protest is protected speech. Tearing down another person’s posters is not. (My rights to free speech do not include a right to block another person’s speech.) Trapping Jewish students in a library while protesters pound on library doors is not protected speech, either.

So if the university presidents were largely (though clumsily) correct about the legal balance, why the outrage? To quote the presidents back to themselves, context matters. For decades now, we’ve watched as campus administrators from coast to coast have constructed a comprehensive web of policies and practices intended to suppress so-called hate speech and to support students who find themselves distressed by speech they find offensive.

The result has been a network of speech codes, bias response teams, safe spaces and glossaries of microaggressions that are all designed to protect students from alleged emotional harm. But not all students. When, as a student at Harvard Law School, I was booed and hissed and told to “go die” for articulating pro-life or other conservative views, exactly zero administrators cared about my feelings. Nor did it cross my mind to ask them for help. I was an adult. I could handle my classmates’ anger.

Yet, how sensitive are administrators to student feelings under other circumstances? I had to chuckle when I read my colleague Pamela Paul’s excellent column on the Columbia School of Social Work and she quoted a school glossary that uses the term “folx.” Why spell the word with an “x”? Because some apparently believe the letter “s” in “folks” renders the term insufficiently inclusive. I kid you not.

Moreover, each of the schools represented at the hearing has its own checkered past on free speech. Harvard is the worst-rated school for free expression in America, according to the Foundation for Individual Rights and Expression. (I served as the group’s president in 2004 and 2005.) So, even if the presidents’ lawyerly answers were correct, it’s more than fair to ask: Where was this commitment to free expression in the past?

That said, some of the responses to campus outrages have been just as distressing as the hypocrisy shown by the school presidents. With all due apology to Homer Simpson and his legendary theory of alcohol, it’s as if many campus critics view censorship as the “cause of, and solution to, all of life’s problems.”

Universities must absorb the fundamental truth that the best answer to bad speech is better speech, not censorship. Recently, I watched and listened to a video of a Jewish student’s emotional confrontation with pro-Palestinian protesters at Columbia University. Her voice shakes and there’s no doubt that it was hard for her to speak. She seeks a “genuine and real conversation” but also tells her audience exactly what it means to her when she hears terms such as “Zionist dogs.”

Confronting hatred with courageous speech is far better than confronting hatred with censorship. It is obviously important to protect students from harassment. I’m glad to see that the Department of Education is opening numerous Title VI investigations (including an investigation of Harvard) in response to reports of harassment on campus. But do not protect students from speech. Let them grow up and engage with even the most vile of ideas. The answer to campus hypocrisy isn’t more censorship. It’s true liberty. Without that liberty, the hypocrisy will reign for decades more.

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