Let’s Not Boost the Campus Speech Police
Those crowing over the university presidents’ humiliation risk drawing the wrong lessons about free speech.
AT THE END OF A WEEK of polemics over free speech, hate speech, and speech regulation, where do we stand? What, if anything, have we learned? And what might change?
The debates went into overdrive after the viral moment on December 6 when the presidents of Harvard, the University of Pennsylvania, and MIT, during a congressional hearing on campus antisemitism, declined to say that a call for the genocide of Jews would necessarily violate their schools’ policies against harassment. Republicans—including Rep. Elise Stefanik, who led the questioning—seized on the administrators’ non-answers as evidence of moral deficiency, double standards, and outrageous connivance in antisemitism. Many centrist liberals agreed. But critics of progressive campus orthodoxies, such as the libertarian-leaning Foundation for Individual Rights and Expression (FIRE), conservative Manhattan Institute fellow Heather Mac Donald, and liberal Jonathan Chait of New York magazine took a different view. The three university presidents, they say, took the right position on offensive speech in last week’s hearing; the problem is hypocrisy, since they haven’t consistently applied these principles when it comes to offensive speech about other minorities invested with “oppressed” or “marginalized” status in the progressive worldview.
In the latest developments, the House passed a resolution on Wednesday—overwhelmingly supported by Republicans, but also backed by a significant number of Democrats—that slammed the three presidents’ testimony as “evasive and dismissive.” The resolution also called for Harvard President Claudine Gay and MIT’s Sally Kornbluth to resign, following the example of Penn’s Liz Magill, who stepped down over the weekend.
“Anti-woke” crusaders like Christopher Rufo see a culture-war victory. Free speech defenders, such as journalist and FIRE senior fellow Jamie Kirchick, see an occasion to abolish campus speech codes altogether. And many on the left see evidence that the real threat to free speech on campus comes, and has always come, from the right.
THE BACKGROUND FOR THIS WEEK of clashes is the decades-old mess of free-speech controversies in American higher education. The university presidents walked into Stefanik’s trap. Yes, they accurately described First Amendment norms, which private institutions (as all three schools are) do not have to follow, but which are the preferred standard for speech protections in the academy. But as New York Times columnist Michelle Goldberg noted, they came across as “morally obtuse and coldly legalistic,” unable to summon any hint of outrage or condemnation at protected but odious speech. (Goldberg also points out that if you watch the full video of the hearing and not just the viral clip, you will get a more accurate picture, including Gay repeatedly saying that calls for mass violence against Jews are “abhorrent,” “hateful,” and “reckless.”) Their repeated statements that calls for a genocide of Jews would amount to harassment only if they became “conduct” also allowed Stefanik and others to make the ridiculous argument that elite universities currently consider genocidal antisemitic speech actionable only if it escalates to actual genocide. In reality, “conduct” means targeted harassment or bullying, which could consist of, for example, Post-It notes saying “Gas the Jews” or even “Globalize the intifada” affixed to the doors of a campus Jewish center.
It is also true that Stefanik and others in the outrage chorus routinely conflate slogans like “From the river to the sea, Palestine will be free” or “Globalize the intifada” with calls for a genocide of Jews. It’s easy to read (or hear) the subtext of these slogans as genocidal—a Palestinian state from the Jordan River to the Mediterranean Sea implies the destruction of Israel, and “intifada” refers, in its most common usage, to a violent uprising against Israeli Jews. But other interpretations are still possible. Belief in a single Palestinian state with full civil rights for Jews can certainly be seen as shockingly naïve, but we don’t restrict speech for naïveté. To legitimize campus bans or restrictions on speech which can be interpreted as support for genocide is likely to have far-reaching implications. Such restrictions can be used against supporters of the Israel Defense Forces. They can be applied to opponents of gender-affirming care for transgender-identifying teenagers. (Trans advocates certainly see eliminationist subtext in such rhetoric as the recent declaration by Daily Wire commentator Michael Knowles that “transgenderism must be eradicated from public life.”) They can be applied to a defense of Christopher Columbus and of the European settlement of the Americas.
But it is also true that the double standards are real and that speech and expression deemed discriminatory or “harmful” to oppressed groups are readily penalized on college campuses. For that matter, Knowles was barred from speaking to a College Republicans chapter at the University of St. Thomas in Minnesota because school administrators found his commentary on transgender rights too objectionable. In that case, no one was disciplined, but there is no shortage of cases with punitive outcomes. Leslie Neal-Boylan, dean of nursing at the University of Massachusetts-Lowell, was fired in June 2020, in the midst of the George Floyd protests, after a screenshot of her community email concluding with, “BLACK LIVES MATTER, but also, EVERYONE’S LIFE MATTERS” was posted to Twitter by an offended student. (The school said that it was “incorrect to assume any statement by Dr. Neal-Boylan was the cause” of her dismissal, but would not provide an explanation to anyone, including Neal-Boylan herself.) At Northwestern University several years ago, film studies professor Laura Kipnis was subjected to several lengthy investigations, though ultimately cleared, for writing an essay critical of what she considers overreaching sexual harassment policies. In September 2020, St. John’s University adjunct history professor Richard Taylor was found guilty of violating the school’s anti-harassment policy and removed from teaching for asking students to consider, in a discussion of emerging global trade and transatlantic voyaging in the fifteenth and sixteenth centuries, “Do the positives justify the negatives?”
The list goes on. (In addition to FIRE, the Duke Law School campus speech database has a good, ideologically neutral compendium of incidents.) Critics of the three embattled presidents, such as Yascha Mounk of the Atlantic, have pointed to controversies at their schools—notably, MIT’s 2021 cancellation of a lecture by University of Chicago geophysicist Dorian Abbott because he had been outspokenly critical of limiting faculty searches to women and “underrepresented minorities.” And at the University of Pennsylvania, law professor Amy Wax has been targeted for genuinely repugnant views—including overt opposition to nonwhite immigration unabashedly couched in racist stereotypes—but there is little question that the university’s attempts to revoke her tenure and fire her trample on academic freedom. Wax’s case is a clear example of the principle the three presidents were trying to articulate: Even offensive, hurtful, and odious speech in the academy should still be protected as long as it doesn’t rise to the level of harmful conduct, i.e., harassment or threats.
THE PROGRESSIVE LEFT routinely dismisses reports of campus speech suppression as a “moral panic.” The latest round of this dismissal focuses on a FIRE-sponsored survey in which “only” 3 percent of students said they had been disciplined in some way for their speech or expression (defined as “otherwise lawful words or actions intended to communicate a message, and which would be reasonably likely to be understood by an observer”). But given that another 6 percent said they had been investigated or threatened with discipline for speech or expression, this is hardly a trivial finding—especially since far more students are likely to feel the chilling effect of disciplinary action.
Most campus speech policing in recent years has come from the “social justice” left which, for various reasons, tends to exclude Jews from its definition of “marginalized” or oppressed minorities and to regard antisemitism as less worthy of concern than other forms of hate (especially if it comes from groups seen as more oppressed, e.g., Muslims or Palestinians).
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But it is also true that even before October 7, some on the political right were pushing to apply the logic of “harm” from offensive expression to anti-Israel speech—for instance, to claim that protests or events hostile to Israel were antisemitic and violated civil rights protections for Jewish students. Consistent free speech defenders, from FIRE to individual academics such as Brooklyn College historian K.C. Johnson, have criticized these efforts. They note that, while anti-Israel and anti-Zionist speech often flirts with, and sometimes blatantly embraces, ugly antisemitic tropes, this is where the principle that “the answer to bad speech is good speech” can flourish. Speech can be countered with speech that not only corrects false assertions but calls attention to the bigoted tropes. Or, in some cases, simply exposes the troubling subtext of seemingly innocuous statements. A recent campus survey found that while a strong majority of students supported the slogan “from the river to the sea,” support dropped precipitously once the students were given an explanation of what it entailed and exposed to facts that made optimistic perspectives on this slogan difficult to sustain.
YET IT IS ALSO UNDENIABLE that in recent years, and particularly since October 7, pro-Palestinian and anti-Israel activism on many college campuses has crossed over into direct bullying of Jewish students—whether they are Zionists or merely suspected of being Zionist because they are Jews. In one notorious incident at the University of California at Los Angeles in 2015, a Jewish candidate for a seat on the student judicial board, Rachel Beyda, was explicitly asked by a student council member how she could “maintain an unbiased view” given that she was “a Jewish student and very active in the Jewish community,” and Beyda was initially rejected—apparently for no other reason—until a faculty adviser intervened and pushed the council to reconsider.
Writing in the Atlantic, David Frum documents the intimidating, often physically harassing tactics employed by anti-Israel protesters in the past two months, ranging from blocking doors to mobbing individuals. There have been actual assaults as well. At Columbia University, only a few days after the Hamas attacks in Israel, a 19-year-old student not only ripped down posters depicting the hostages taken by Hamas, but allegedly attacked an Israeli student who was putting up the posters, fracturing his finger. In a widely reported October 25 incident at Cooper Union college in Manhattan, students who had earlier attended a pro-Israel rally had to take refuge in the library (where a staffer locked the doors for their safety) when a crowd of pro-Palestinian protesters swept through the building and chanted outside the glass windows of the library after being told it was closed.
One may debate the extent to which these actions target Jews as Jews. The protesters at Cooper Union, for example, explicitly denied targeting Jews, but it’s hardly surprising that Jewish students in a library felt particularly intimidated by a crowd yelling and pounding on locked doors when that crowd brandished signs like, “Zionism Hands Off Our Universities.” (For what it’s worth, one student also said that the demonstrators “were specifically acting very aggressive in those spaces where outwardly Jewish students were sitting.”) An Israeli student encircled and mobbed by pro-Palestinian students chanting “Shame!” was reportedly targeted for filming protesters at a pro-Gaza “die-in,” not for being Jewish or even Israeli. Either way, such behavior still amounts to bullying and assault. Speech that involves screaming, banging, mobbing, chants intended to silence, etc. turns into conduct that cannot be easily countered with “more speech,” because its goal is, precisely, not to allow more speech.
And it’s this kind of conduct that campus speech policies should restrict. My alma mater, Rutgers University, offered a good example of such an approach earlier this week when it suspended its chapter of Students for Justice in Palestine. The suspension was not for offensive opinions, of which SJP has plenty (for instance, that Israel is entirely to blame for the October 7 Hamas massacre of Israelis), but for repeated disorderly behavior—including reported disruption of classes, meals ,and study hours—as well as vandalism and occupation of buildings.
Students who feel “unsafe” because their beliefs are aggressively questioned or criticized—even beliefs related to their identity, be it Zionism, feminism, Black Lives Matter activism, or transgender advocacy—need to grow a thicker skin. Students who feel unsafe because their beliefs or identities—ethnic, religious, sexual, whatever—are targeted in a disruptive and physically aggressive way deserve a safer campus. Administrators should be careful not to conflate obnoxious or offensive speech with harassing or threatening conduct. And public officials should stop making an already precarious situation for academic freedom worse by using the issue for political theater.