Freedom of speech is one of the core principles of America’s First Amendment. It is often defined as a person’s right to say whatever they like, as long as such speech does not endanger someone else’s personal safety. This goes to the heart of a crucial idea, which is that speech — even speech that we find repugnant — is different from conduct.
The boundaries of that idea have been tested in recent years in many ways. They were tested again last week when three presidents of elite US universities — the University of Pennsylvania, Harvard, and MIT — appeared before a House committee examining antisemitism on campuses in the wake of the Israeli war in Gaza. A wave of pro-Palestinian protests have hit campuses all over the US, where university politics lean heavily to the left.
Such schools have in recent years tended to err on the side of condemning those who champion impolitic views, often conservative ones, or criticise leftwing ideas such as critical race theory. Now, that tendency has left them straddling an uncomfortable line between protecting individuals and protecting free speech.
Pro-Palestinian protesters on campuses chant slogans like “Intifada now,” or “From the river to the sea, Palestine must be free,” which some interpret as a call for genocide against Jews. There have also been increasing episodes of harassment of Jewish students on campuses. In many cases, perpetrators have not been cancelled or fired as they might have had they criticised, say, affirmative action or used hateful language against minority students. This has provoked outrage among many (including some powerful donors) who feel universities are turning a blind eye to antisemitism.
The issue has now reached a tipping point. When asked if it would be against university bullying and harassment policies if someone on campus called for a genocide of Jews, none of the presidents could come up with a clear answer. Penn’s Liz Magill, who had labelled such calls “hateful” but claimed they were protected by the school’s commitment to free speech, backtracked the next day and resigned, calling the attacks on Jewish students unacceptable. In an ever more hateful world, she said, university speech “policies need to be clarified and evaluated”.
Indeed. There are several thorny issues in play here, from changing generational views about Israel, to the parsing of individuals into ever smaller interest groups, to the challenge of balancing free speech and safety. Speech codes at private universities don’t have to follow constitutional law. These institutions could, if they chose, explicitly prohibit calls for genocide.
Here, though, we should go back to the differences between words and actions. If there is a clear and present danger to someone’s safety, then speech that provokes that danger should be prohibited. That would include attacks on individual students during rallies. Direct calls for genocide should also fall under this rubric. But slogans that are merely hateful (or perceived as such) may not. Universities are places where people go to be exposed to different views: if speech is constrained with more and more specific rules designed to fit the politics of the day, the truth is likely to become harder to find. Too many institutions have drifted towards legalistic self-protection rather than truth seeking.
But to the extent that there are rules, they must be applied equally. Faculty and students cannot be penalised for hate speech against one group, and not another. The fact that the heads of America’s most elite universities do not have a clear understanding of their own speech codes and how to enforce them is cause for grave concern.