These seemingly conflicting conclusions reflect the agonizingly difficult questions presented by the issue of free speech on college campuses. Academic institutions are places where values of intellectual freedom should be paramount. They are also communities, including young people living away from home for the first time, that are dedicated to fostering a climate conducive to learning and that owe their members duties of respect and care.
And so, some thoughts on how best to manage these conflicting imperatives and to apply them to the case at hand:
First, no solution can tolerate an uneven playing field. Both sides in the long-running campus speech debate are guilty of hypocrisy and applying double standards. Conservatives who decried “cancel culture” and lampooned “snowflakes” melting over perceived slurs have a different, less robust vision of free speech protections when it comes to chants about intifada. Progressives who complained of being triggered by comments that offended their sensibilities now pose as defenders of free speech. This situation requires rules that are enforced in an evenhanded way.
Second, as much as free speech absolutism has its advantages, including the ease of applying a bright-line rule, this is not the best solution. Yes, a university should ensure “the fullest freedom for its faculty and students as individuals to participate in political action and social protest,” as the University of Chicago Kalven Report put it in 1967, another moment of intense ferment on campus.
But there should be limits, in the university setting, that do not extend to the full contours of the First Amendment. (Public institutions are subject to different rules.) Thus, Nazis have a constitutional right to march in Skokie, Ill. That doesn’t mean they have a right to establish a campus club. A protest featuring chants advocating enslaving Black students or a banner hung from a dormitory window that features a swastika or argues for castrating gay students would rightly be deemed off-limits in a campus environment.
Third, that conclusion means that the distinctions that Magill and the others tried to draw in last week’s disastrous hearing are helpful but inadequate. Magill, Harvard President Claudine Gay and Massachusetts Institute of Technology President Sally Kornbluth sought to draw two distinctions: between speech and conduct, and between protected speech and speech that rises to the level of targeting and harassment. Certainly, conduct and harassment cross the line of what should be allowed. But for the reasons described above, those proscriptions do not go far enough.
Fourth, this situation requires understanding how and where to draw the line. I would argue: at speech that clearly and explicitly advocates specific and actual harm to identifiable groups. “Clearly” and “explicitly” are essential terms here, and that is where the university presidents got most tripped up, as I’ll discuss below. So are “specific” and “actual.” This isn’t about the subjective experience of those who feel hurt or somehow threatened by speech they don’t like — it’s about advocating actual injury.
“Is that okay for students to call for the mass murder of African Americans at Harvard? Is that protected free speech?” Stefanik asked Gay. There’s a clear answer to this question: No. Gay’s attempted answer, before Stefanik cut her off — “Our commitment to free speech extends …” — doesn’t cut it.
Applying that test, limiting speech that clearly and explicitly advocates specific and actual harm to an identifiable group should not be difficult. Anyone smart enough to be a university president should be able to state without reservation that supporting genocide violates university policy. Period. That it is not, as Magill equivocated, “a context-dependent decision.” Where the presidents found themselves ensnared — where Stefanik suckered them — was in accepting a definition of genocide that, like definitions of apartheid, goes far beyond the word’s actual meaning.
Each side in the Israeli-Palestinian debate insists that the other is practicing or endorsing genocide. Both are wrong. Whether you believe that Israel has gone too far in its assault on Gaza, it is not attempting to eradicate Palestinians as a people, fueled by a belief in Palestinian inferiority.
Likewise, calls for intifada and chants of “from the river to the sea” are, in my view, horrifyingly wrong and dangerous, inherently entailing violence against Israeli citizens. But they do not automatically rise to the level of endorsing genocide. Not to be naive about the significant overlap between anti-Zionism and antisemitism, these are distinct phenomena. It is possible to believe that Israel should not have been created and should not be maintained as a Jewish state and not be understood as advocating the elimination of Jews along the lines of Hitler’s final solution.
Instead, Magill, Gay and Kornbluth fell into Stefanik’s trap, too easily acceding to her expansive definition. “You understand that the use of the term intifada in the context of the Israeli-Arab conflict is indeed a call for violent armed resistance against the state of Israel, including violence against civilians and the genocide of Jews,” Stefanik asked Gay. The conversation proceeded down this path of conflation, with the presidents mystifyingly, repeatedly and infuriatingly resisting the invitation to state plainly that advocating genocide violated their campus codes.
Which brings me to the fifth, and final, point, which is that the ensuing calls for the presidents’ removal were, nonetheless, wrong. Their comments were so boneheaded, it is tempting to say they should go. But I recoil at any mob demanding heads. Stefanik and her fellow Republicans were seeking to score political points and trick the presidents, not have a reasoned discussion about a complex issue. Magill and Gay, having badly blundered in the moment, later apologized.
In addition, and this might be my overriding concern, Magill’s resignation seems to have been driven by the demands of donors threatening to withhold their contributions. Harvard’s major givers are similarly pressuring the university to fire Gay.
Here, I align with Harvard Law School constitutional scholar Laurence H. Tribe, who accurately described Gay’s testimony as “hesitant, formulaic, and bizarrely evasive” and signed a letter opposing her removal. “I think there would be deep longer harm to institutions that are vital to a healthy democracy if Harvard, whatever one might say about its initial decision to hire Claudine Gay, were to force her out under this kind of pressure,” Tribe told me.
Empowering those with political agendas and their allies with big checkbooks to dictate university policy is unhealthy and antithetical to the educational mission. “One down. Two to go” should give us all pause.
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