Against Free-Speech Hypocrisy

And in (partial) defense of Harvard President Claudine Gay's controversial congressional testimony.

Dr. Claudine Gay (left), president of Harvard University, testifies before the House Committee on Education and the Workforce, while Liz Magill, president of the University of Pennsylvania, gives her ‘Blue Steel’ look (photo by Kevin Dietsch via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

This is an essay that many readers will dislike, maybe even hate, for many different reasons. So please allow me to begin with two important caveats.

First, I realize there are many, many parts of the Israel-Hamas War that are vastly more important than free-speech issues—including, of course, the tragic loss of thousands of lives. But I’m not going to discuss those topics because I have no expertise in them, and the world has no shortage of pundits bloviating about subjects they know nothing about.

Second, I have what I believe to be moderate and nuanced views on the Israel-Palestine conflict—but if you forced me to pick the side I identify with more, I would say Israel. And if you asked me to rate the seriousness of antisemitism as a problem, especially on university campuses, I would give it an extremely high rating—probably higher than most folks reading this post, I’d wager.

These opinions are, I suspect, largely the product of personal factors. For example (this is not an exhaustive list), I’m married to a Jewish man; we’re raising two Jewish sons; my full name is “David Benjamin Lat,” after two Jewish colleagues of my father’s at Mount Sinai Hospital; and I worked at Wachtell Lipton, a law firm founded by Jews excluded from Biglaw by antisemitism. Antisemitism is personal to me: if you hate Jews, you hate my family, the people I love most in the world.

I acknowledge that I would likely hold different views if I were living a different life. But this is the life I have been given, and these are the views that I hold.

Although I share my priors in the interest of full disclosure, my views on the underlying Israel-Palestine conflict or the scourge of antisemitism are not germane to my views on the free-speech issues that have arisen since October 7. Alas, this point seems to be lost on many participants in these debates.

On Tuesday, Representative Elise Stefanik (R-N.Y.), a Harvard graduate, aggressively questioned Dr. Claudine Gay, Harvard’s president, at a congressional hearing about antisemitism on American university campuses. You can watch a video (starting around 1:48:08) or read a transcript of the Stefanik-Gay exchange, but the gist of it is fairly captured in this tweet by Stefanik:

The President of Harvard cannot answer the basic question: “Does calling for the genocide of Jews violate Harvard’s rules regarding bullying and harassment.”

She literally cannot just say YES. The only acceptable answer is YES.

And when a liberal luminary like Professor Laurence Tribe agrees with a MAGA conservative like Representative Stefanik—he tweeted that President Gay’s testimony was “deeply troubling”—the opinion is probably widely held.

But I respectfully dissent, at least in part, from the widespread criticism of President Gay and two other university presidents, Liz Magill of the University of Pennsylvania and Sally Kornbluth of M.I.T., who similarly refused to flatly declare that calls for genocide can be grounds for student discipline. I dissent “in part” for two reasons.

First, while I’m about to defend some of the substance of the presidents’ remarks, I will not defend—and in fact, I condemn—the style in which they were delivered. For a detailed and devastating critique of the presidents’ insensitive and high-handed manner, see Sarah Isgur and David French of Advisory Opinions.

Second—as my longtime readers know, and as the rest of this post will make clear—I abhor free-speech selectivity. So I do not defend, and in fact I condemn, the many, many times that university leaders, including law school deans, have run roughshod over free expression to advance certain (typically progressive) political perspectives. These are often the very same leaders who, in the words of Greg Lukianoff, “have suddenly rediscovered the value of free speech and academic freedom.” Such inconsistency, even hypocrisy, is utterly unacceptable. And if you read through the Original Jurisdiction archives, you will see me repeatedly calling it out over the years.

Now, on to substance. Let’s start at the beginning. As President Gay testified, Harvard “embrace[s] a commitment to free expression, even of views that are objectionable, offensive, [or] hateful.”¹ But “when that speech crosses into conduct that violates our policies against bullying, harassment, [or] intimidation,” as set forth in Harvard’s Code of Conduct, then the university can and must act, according to Gay.

As the Harvard Code explicitly notes, “speech not specifically directed against individuals in a harassing way may be protected by traditional safeguards of free speech, even though the comments may cause considerable discomfort or concern to others in the community.” I have two things to say about this.

First, the reference to “speech not specifically directed against individuals” makes sense because, as explained by Professor Eugene Volokh in an interesting Northwestern Law Review article, harassment law reflects a distinction between “one-to-one speech” and “one-to-many speech.” 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.

Second, the reference to “traditional safeguards of free speech” likely represents Harvard’s intention to incorporate First Amendment jurisprudence, which is what many private universities strive to do in their speech policies. Although private universities, unlike public ones, are not subject to the First Amendment, most of them—especially elite schools like Harvard—profess a robust commitment to free expression that tracks free-speech case law.²

Now let’s look at specific examples of speech that Representative Stefanik views as violating the Harvard Code of Conduct:

• “There is only one solution. Intifada revolution.”

• “Globalize the Intifada.”

• “From the river to the sea.”

Representative Stefanik stated that she views these statements as tantamount to “call[s] for the genocide of Jews and the elimination of Israel,” and just as reprehensible as speech “calling for the mass murder of African Americans.” But note that President Gay similarly refused to say that calling for the mass murder of Black Americans would violate the Code of Conduct. And if you’re serious about free speech, you should agree with President Gay’s refusal to say yes (on both counts).

I reached out to two of my favorite First Amendment and free-speech experts, Professors Nadine Strossen and Eugene Volokh, to ask them: what am I missing? Specifically, I emailed something along the following lines (I’ve made minor tweaks to my message, mainly for clarity):

Obviously, threatening an individual Jewish student can constitute bullying or harassment. But can saying something negative or threatening about all Jewish people—or all Asian people, or all gay people, or all members of any other group—constitute bullying or harassment, if no individual is targeted?

If I go to a protest and quietly hold up a sign that says “globalize the Intifada” or “from the river to the sea”—but take no other action, and certainly no action that meets the Brandenburg v. Ohio standard of speech “directed at inciting or producing imminent lawless action”—is that really “bullying or harassment”?

I suppose one could argue that “globalize the Intifada” means “take the Intifada to Harvard Yard” means “harass individual Harvard students.” But if “globalize the Intifada” is just being tossed out as a slogan at a rally—as opposed to, say, pointing at a student in a kippah walking across Harvard Yard while shrieking, “Globalize the Intifada!”—it doesn’t seem like incitement, a true threat, bullying, harassment, intimidation, or any other type of speech unprotected by the First Amendment.

Professor Strossen—who wrote an article less than two weeks after the Hamas attacks that you should read, Even Antisemites Deserve Free Speech—agreed with my analysis. Calls for genocide, standing alone—without any targeting of individuals, without any additional action—are protected free speech. She added this observation: “Note the irreducible subjectivity of the concept. Many would argue that advocating Israel’s military response is advocating genocide. I don’t see any clear stopping point.”

Professor Volokh also concurred. We had a detailed email correspondence, and he turned his part of the exchange into an excellent blog post, Should Universities Ban “Advocacy of Genocide”? His bottom line: “There’s no ‘advocacy of genocide’ exception to the First Amendment, or to the contractual promises of student free speech that many private universities rightly implement.” His post goes on to explain why exceptions to the First Amendment for incitement, true threats, and harassment are unlikely to apply to speech that amounts to “simply expressing offensive viewpoints to the public” (as opposed to, again, threatening an individual).

Please don’t get us wrong: even free-speech zealots like us agree that when speech is not protected by the First Amendment, it’s not protected by the First Amendment. Here’s the final paragraph of Professor Volokh’s post:

All this having been said, universities should prevent violence, vandalism, trespassing in faculty or administration offices, obstruction of students’ path to class, loud noise that unduly interferes with studying, and more. But they should do so regardless of students’ viewpoints, not because those viewpoints are seen as supposed “advocacy of genocide.”

Here’s another example. Some of you might have seen a viral video of an Israeli student at Harvard Business School who was physically accosted—by an editor of the Harvard Law Review, among others—while trying to record a pro-Palestinian “die-in” on Harvard’s campus. With the caveat that I don’t know anything beyond the brief video snippet, including what happened before and what happened after, this interaction appears to me to violate Harvard’s Code of Conduct.

Some of my conservative friends expressed support for applying anti-bullying and anti-harassment policies to students who chant or hold posters saying “globalize the Intifada” or “from the river to the sea.” Their argument: even if these chants or posters weren’t directed at individual students, some individual Jewish or Israeli students subjectively felt threatened, bullied, harassed, or intimidated. And having read many harrowing accounts of what’s going on today on American university campuses, I have no doubt that this is true.

But if subjective offense or upset is the standard—sufficient to override a lack of individual targeting, severity, or pervasiveness—then what about a conservative student writing an op-ed in the Harvard Crimson criticizing gender-affirming surgery? I’m sure such an op-ed would cause some individual transgender students to subjectively feel threatened, bullied, harassed, or intimidated.

Here’s a second argument I heard, from a conservative friend who generally shares my strong pro-free-speech views. Antisemitic speech can and should be banned because—by denying the humanity of certain participants in discourse (Jewish people), effectively seeking to banish them from the forum—it is antithetical to the ground rules for free and civil discourse.

But let’s put the shoe on the other foot. I wonder how my conservative friend would distinguish his argument from that of my former colleague Joe Patrice, who wrote in Above the Law (citing Karl Popper) that “tolerance demands the intolerance of intolerance.”

Here’s an example. Progressives would argue that anti-trans speech, such as criticism of gender-affirming surgery or questioning the participation of trans athletes in girls’ and women’s sports, can and should be banned. Why? By denying the humanity of certain participants in discourse (transgender people), effectively seeking to banish them from the forum, it is antithetical to the ground rules for free and civil discourse.

To be clear, I reject this intellectual end-run around free speech, whether deployed on behalf of Jewish people or transgender people. Tolerance demands… tolerance, including of the most vile, reprehensible opinions known to man.

This post has been a downer, so let me end on a positive note. Despite all the ugly and hateful speech we’ve seen recently, which has given rise to unfortunate free-speech hypocrisy—or, to be more charitable, free-speech inconsistency—three good things could still emerge from all the awfulness.

First, the repression of or retaliation against pro-Palestinian voices—including current or future associates at Winston & Strawn, Davis Polk, and Foley & Lardner—might make folks across the ideological spectrum realize that cancel culture is real. It’s harder for the left to dismiss cancel culture as a right-wing chimera now that pro-Palestine progressives are the ones getting canceled.

Second, hopefully we’ll see a decline in the practice of managing partners and law deans issuing statements about controversial social issues—something I have criticized in the past for “creating and enforcing an institutional orthodoxy,” in the words of former Stanford Law dean Jenny Martinez. Until recently, the cost-benefit analysis favored statements: if you issued a statement, the left would be happy, and the right would be… silent. But when it comes to the Israel-Palestine conflict, people across the ideological spectrum are so passionate and outspoken that leaders get blowback from all sides. So perhaps these leaders will start rethinking the wisdom of wading into the culture wars in the first place.

Is it fair to say, “Sorry, the Statements Store is closed,” now that Jews are the ones who are being slaughtered? If I were someone like President Gay, a new leader of a university or firm, I’d say something like this:

I realize my predecessors issued statements on everything under the sun for the past few years, from the murder of George Floyd to Ukraine to Dobbs. So I will issue a statement vigorously condemning the October 7 attacks, since to not issue a statement, in light of recent past practice, would be a statement of its own.

But after this one last statement, I’m adopting the reasoning of the University of Chicago’s great Kalven Report (1967): no more statements.

For additional, insightful discussion of the statements issue, including tricky nuances, see Ken White, Punishment Envy And The Perils Of Institutional Engagement.

Third, I hope that recent free-speech controversies will make us more consistent—and more passionate—in defending free speech. If you have a strongly held view on the Israel-Palestine situation that you’ve been sharing in recent weeks, remember this: other people have equally strong views, and your ability to share your opinion depends on a free-speech culture that requires letting others share their views as well.

To repeat what I revealed at the start of this post, I am both horrified and infuriated by antisemitism, and I strongly believe in the right of Israel to exist as a Jewish state. But I will defend, just as strongly, your right to attend a public protest and chant “from the river to the sea.”³

We can argue about whether anti-Zionism is antisemitism. But even antisemitism, as abhorrent as it is, is protected by the First Amendment.

We should defend most vigorously the speech we most disagree with—or even detest. To quote an old saying (or the title of the Nat Hentoff book), “free speech for me, but not for thee,” is no free speech at all.

1. Yes, I realize—and Representative Stefanik pointedly noted—that Harvard ranked dead last in the latest college free-speech rankings issued by the Foundation for Individual Rights and Expression (FIRE) and College Pulse. But I’ll take President Gay at her word and assume that under her tenure, which started only on July 1, Harvard is trying to turn over a new leaf.

Back when I attended Harvard for college, I felt its intellectual environment allowed for robust free speech. I was able to write numerous Harvard Crimson columns that would get me canceled today, like this gem (for which I have previously apologized, and I apologize again in this footnote). But I graduated more than 25 years ago, and a lot has happened since then.

2. Will some private universities rethink having speech policies that track the law? Unlike public universities, private institutions are free to diverge from the strictures of the First Amendment.

In a video message posted last night, another president who was raked over the coals at the hearing—Liz Magill of the University of Pennsylvania, former dean of Stanford Law—said that while Penn’s “longstanding policies, aligned with the U.S. Constitution, say that speech alone is not punishable,” these policies “need to be clarified and evaluated” in a world where hate is proliferating. Accordingly, she is initiating a process to review Penn’s policies. President Magill’s statement can be fairly characterized as “backtracking,” since she now criticizes and wants to reconsider university policies that she stood by on Tuesday. (Harvard’s post-hearing tweet, in contrast, is simply a more artful rephrasing of President Gay’s testimony, confirming that the university will discipline the makers of true threats.)

I’ll keep an open mind about President Magill’s proposal, but my initial take is that untethering university speech policies from constitutional law is a bad idea. Conservatives who will be thrilled to see Students for Justice in Palestine get banned should think about whether they’re fine with Students for Life of America or the Federalist Society getting banned too. If you favor a novel approach to university speech that diverges from the law, I’d love to hear your detailed proposal—and maybe I’ll have a future Notice and Comment post dedicated to the issue. (The challenge reminds me of trying to replace the rule of Employment Division v. Smith: Smith has many problems, but it’s not clear what should replace it.)

3. I realize it’s easy for me to type these words, sitting in my warm bed—like Edith Wharton, I love writing in bed—on top of a toasty heating pad, in a safe suburban town, miles and years away from my alma mater. Although I have tried to educate myself by reading personal accounts from current students—which have been heartbreaking and gut-wrenching, but are important for us to expose ourselves to—I cannot fully comprehend the anxiety and fear of Israeli, Palestinian, Jewish, or Muslim students on university campuses today.

Feel free to email me or post in the comments if you are such a student and want to share your experience. As noted in footnote 2 above, I am totally open to hearing specific proposals for balancing free speech with other values on the campuses of private universities. I have my doubts about whether we can come up with anything better than importing a robust body of First Amendment case law that has been carefully and thoughtfully developed over decades, but I want to hear from you.

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