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. 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? (The president of Penn, Elizabeth Magill, resigned Saturday.)
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, the law
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.
Context matters
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.