David, you wrote a long column on a morally complex topic, incorporating the widely divergent views of people you respect, addressing concerns and objections from all sides, and coming to a well-supported, reasonable, sustainable conclusion. What's WRONG with you?
I am an old lawyer, now retired, who remembers very well the chilling march through Skokie, IL, so many years ago. My feeling then is dwarfed by my feeling now. Not because defense of 1st Amendment rights are (or should be) any less robust, but because of context. We entrust our children to these universities, and we need to expect more from them.
Violence such as that suffered by the young Jewish student at the hands of the Harvard Law Review Editor and his “friends”, repeated in various heartbreaking forms all over the campuses of our nation, is the context that frames the fear and intimidation created, intentionally so, by those who chant (in so many words) “we are coming for you”.
Yes, we, especially as lawyers, can find a colorable defense in the 1st Amendment. But I ask, who are we, in the context of a university, when we do not call those to account (in a chosen code of conduct) for the harm inflicted by mob behavior directly calling for the genocide of a people? Especially so, when in context, all around us are individuals threatened, harassed, and intimidated by actual physical violence in furtherance of that very call?
I ask more of our educators. I would hope for more from all of us.
This whole issue strikes me as being approached through the wrong lens by most commentators. This is fundamentally a discrimination issue, not a speech issue or a harassment issue.
It isn't Rep. Stefanik's place to tell Harvard "This specific speech doesn't violate your Code of Conduct? Really? Yes it does" -- Harvard's policies are its own, and as a private institution it can set those policies however it so chooses! Rather, the issue is that Harvard uses its Code of Conduct as a sword (for preferred voices) and a shield (against disfavored criticism -- Jewish in this instance).
The core issue is that these universities have used their Codes of Conduct in the past on a hair-trigger, with aggressive breadth in interpretation, to advance the universities' preferred groups -- but now the universities have a different, much higher, standard for Jewish students. This is fundamentally discriminatory. I cannot tell if this has been a wake-up call for the universities of how far their policies have taken them, but I can only hope so.
I too hope for a "no more statements" approach to these issues, but the administrators/faculty that have led the universities down this path do not strike me as likely to unwind the machine they've put in place. Society's plummeting trust in universities as an institution feels very apt here -- where I think all of us think the least likely outcome is that the universities admit to hypocritical and bad behavior in the past while committing to do better in the future to fairly, and equally, apply their policies for all people going forward.
I agree with much of your analysis on this being a discrimination issue, which I condemn in the piece, and I also share some of your skepticism about whether university leaders will do better going forward.
But one reason for optimism (which I didn't have the space to get into here) is how donors are now starting to use their clout to address the discrimination problem. Private universities can engage in viewpoint discrimination, but private individuals can withhold their donations when universities do. Greg Lukianoff had a good piece about this:
I mean this genuinely, do you honestly feel like donors have any real influence on institutions with endowments the size of Harvard ($50 bn+), Penn ($21 bn) or MIT ($23.5 bn)? A year with a simple 5% return (below the running rate of such institutions), is in the billions of dollars a year. Even record breaking donations that are $100 million plus that get schools named after the donors suddenly feel insignificant in the face of immense treasure chest endowments.
I suspect donors had significantly more influence over universities 40+ years ago -- not that a donor-influenced policy is necessarily an ideal model to run a university either. But the financialization of these universities and their massive endowments has moved the needle to genuine independence. I doubt anything other than government intervention (or lawsuits, enforced by the judicial system) can impose change on these universities that they do not seek out themselves.
I agree with you that donors don’t have as much influence as they used to. But all the scrambling you’re now seeing among the leaders of elite schools is, I suspect, largely a product of SOME donor clout.
And there’s no way to prove this counterfactual, but I think things would be so much worse without donor pressure. Instead of debating over whether to fly the Israeli flag (which came up at the hearing), they’d be flying the Palestinian flag, no debate necessary.
I generally agree and am hopeful it is true, but here are a few reasons why I think holding out for donors is likely a fools errand. (I was writing this as an "Edit to Add" to my prior post, but saw you've commented -- don't feel any obligation to respond I just wanted to voice my frustration more fully):
(1) for better or worse, US News rankings rewards (or rewarded, maybe it has changed) participation among alumni in terms of donations as a percentage basis. With elite schools dropping out of US News rankings, they're flexing their newly found independence, and no longer need to care whether their decisions will impact the volume of alumni who donate to them as it pertains to rankings;
(2) there's always going to be an undercurrent of people seeking to donate to schools to get their kids (or grandchildren) into these elite institutions due to the immense career and social benefits that come from them. While the wealthiest -- who can make noise and shut off the donation spigot because their offspring/families have generational wealth that is independent from any specific university-affiliated career boost -- can vocally drop out of donating, I suspect a number of upper-middle-class alumni will continue to donate to give their kids whatever edge they can. Until our high-professional careers become de-Ivied (for lack of a better term), I don't know if there's any real movement to be had in this regard. While I am not Jewish, I have many lawyer friends who are, and while they're disappointed with the stance universities have taken -- I haven't really heard anyone say "I'd never let my kid go to Harvard". Rather, they know these institutions have discriminated against Jews in the past, but still value the benefits that come from such schools above and beyond institutional discrimination;
(3) Trustees/Boards are the real points of influence at universities. While historically they were disproportionately composed of the largest and most influential donors, the last 10 years has seen significant diversification of the trustees/boards of every institution. Such diversification is, hopefully, good (ideally it would be viewpoint diversity, but that's another issue), but it has diluted the influence of donors more generally. Further, it is an entrenchment of the independence (from donors, generally) the universities seek (and they now have due to their tremendous endowments). Which I think in an ideal world is maybe/probably good? Universities, pursuing truth and knowledge, should be independent. But I don't think anyone can look back on the last ten years and say the direction universities have taken have pointed them towards anything other than ideological conformity and in-group signaling.
David two columns in a week, Christmas came early this year! I have not had a chance to review all of the comments yet,so someone may have made this observation. Oliver Weissman had an excellent observation about this issue In today’s issue of the Free Press.
He noted that the hypocrisy is not so much free speech but the issue of safetyism. That these Universities promote safe spaces on campus or disinvite speakers on campus when some group of students don’t like the persons political point of view. Harvard a few years ago did not defend the professor who had the wild notion that the University shouldn’t police what costume a college student could wear for Halloween or that students and professors should be held to account for the ever shifting crime of micro aggressions.
So, it seems to me that it is quite reasonable that these University presidents were hoisted on their petard not for their sudden appreciation for the First Amendment but for their hypocrisy surrounding these issues.
I also find it interesting that the DEI infrastructure is incapable of addressing this issues. I guess if you not a chosen “victim” then your shit out of luck.
I totally agree with you and Oliver Wiseman on the inconsistency (to put it charitably) that's going on here.
P.S. The Halloween controversy happened at Yale, not Harvard. My undergraduate alma mater is dead last in the FIRE free-speech rankings, but the costumes debacle happened at our rival to the south. ;-)
Great piece, and as a free speech die hard, I tend to agree with you. I think what makes the current situation hard for many Jewish people like myself to swallow is that there is no doubt that, despite what the Harvard president may have said, a student or faculty member who called for the mass murder of Black people or trans people or whatever would be out on their butts in a second. But to be honest, I think protesters screaming “we need another Auschwitz here in Boston” would be too. The fact is that “globalize the intifada” and “from the river to the sea” are coded phrases and everyone can argue they mean this (murder Jews) or that (support the Palestinian political project).
Thanks Elaine, and I totally agree with you. There has long been a double standard when it comes to Jewish people versus other minorities, and it's indefensible.
As a fellow free-speech die-hard, I'm strongly opposed to what Lukianoff and Haidt refer to as "safetyism" in The Coddling of the American Mind. But if you're going to have it, it needs to protect all minorities, not just certain favored groups.
Totally agreed - the issue isn't whether a student should be kicked out if they actually advocated mass murder of an ethnic group. It's whether the slogans in question constitute such advocacy, and who gets to make that determination.
Thank you for a remarkably well-done column. Please know that my comments below are meant to add to the conversation and quibble with one point, not to denigrate the magnitude of your achievement in articulating your position.
Although you write "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", I do not think you really accept that position. All of the speech-response to which you point (by universities and by private employers) is NOT prohibited by the First Amendment because it is not state action. "Cancel culture" (which you oppose) is just another way to say "private actors exercising the First Amendment rights of free speech and free association to denounce and/or decline to work with people who espouse viewpoints that they find odious." I do not believe that a person can be anti-"cancel culture" and pro-First Amendment. Rather, you are describing a world where people should have the ability to say/do whatever they want, but people who are horrified by those statements/actions should not be free to scream from the highest mountain and take action to free themselves of interactions with (or financial support to) the person that has espoused an idea that they find loathesome.
Thanks for the thoughtful comment, Mitch! Will you be at the holiday party next week?
I'd distinguish between three things:
1. Law, including both constitutional law (the First Amendment) and statutory law about things like discrimination and harassment.
2. University policy (when it comes to private universities).
3. Norms and values.
As I argue in this essay, I generally admire (1) our free-speech case law, as well as what I'd more broadly call "free-speech culture" and "free-speech values." So I support importing the law, in both letter and spirit, into (2) university policy, as discussed here, and (3) norms and values.
So on the cancel-culture stuff, which mostly falls into (3)—and by the way, a lot of the stuff that us anti-cancelers oppose IS state action (like the Stop WOKE Act)—I would say that even if you might have a legal right to attack someone, it would be preferable for you to have a respectful dialogue with them. Before calling for their firing—which, again, you have the legal right to do—try talking to them, explaining what you find troubling about their speech. Or try explaining, to the neutral people in the middle that you're trying to win over, why the person is wrong.
Opposing cancel culture is about trying to view others with a spirit of charity and grace, where we don't immediately assume bad faith or prejudice, try to ruin their career or their life, etc. I like the framework articulated by Professor Loretta Ross, where we focus on "calling in" rather than "calling out" or canceling (links below).
If I get over my current cough/infection, I will be at the DNJ Holiday Party.
I fundamentally disagree with you about the idea of "free-speech culture" being imported into university policy -- if that it going to be enforced at the point of a spear wielded by government officials. I have a HUGE problem with Rep. Stefanik threatening the tax-exempt status of universities that fail to adhere to view of "free-speech culture" that she thinks should prevail. If "free-speech culture" being imported into university policy means that you and other anti-"cancel culture" people are going to call out universities that do not reach the balance that you think is appropriate in deciding speech issues on campus, then you literally have abandoned your position and adopted mine. There is no "anti-'cancel culture'" stand that withstands scrutiny. Either it (a) devolves into state action to enforce the new orthodoxy ("anti-'cancel culture'") or (b) is just another level of private actors vehemently (or non-vehemently) asserting their privately held views about actions taken by third parties.
1. I believe that the American Nazi Party has the right to hold a parade in New York City (my home).
2. I also believe that it is my right to:
a. Counter-protest against that parade;
b. Take photographs of everyone who marches in that parade;
c. Publicly identify everyone who marches in that parade;
d. Boycott any business that continues to employ any person who marches in that parade, except
e. A governmental entity cannot fire a person who marches in that parade for having marched in that parade, outside of certain well-defined categories.
If you believe that is "cancel culture", then I plead guilty to believing in "cancel culture".
I’m glad you raised this point, since I’d like to get your thoughts on an issue I’ve been struggling with (and don’t have a firm view on): “doxxing” of students (who are more sympathetic than Nazis), like students who find their names and faces plastered on trucks or Google-bombed because they did something controversial (like signing a pro-Palestine statement or protesting Judge Duncan).
On the one hand, I think the practice of doxxing is pretty awful. On the other hand, maybe it’s not that different from your Nazi hypo—except as to the content of the speech, but I hate creating speech rules or policies that turn on normative judgments about the substance of the speech.
And let’s say we are troubled by the doxxing of students. What rules can we come up with that don’t infringe on the First Amendment rights of others (like your right to call out the Nazis)?
(And I’m going to stipulate here that the info used for doxxing is both true and publicly available, e.g., through simple Google searches. I don’t want folks to “fight the hypothetical” by saying the info is defamatory or was obtained through commission of a privacy tort.)
If we believe in the First Amendment, then "doxxing" of the sort that you described is legal and falls within the sort of vigorous speech that a Free Speech Culture would support.
To be clear, (a) SWATting is not legal, (b) conveying threats of bodily harm are not legal, and (c) constant contact that is abusive without any reference to the views expressed in the contact are not legal (calling 60 times/hour). But letting the whole world know that Person X said/did Thing Y and publicly available information shows that they can be found in Place Z is well-within the First Amendment.
Before you respond to this, please compare it to the parade-of-horribles that this country is already enduring from the post-Heller view of the Second Amendment.
Thanks for these insights, Mitch. I'm still mulling this over, but as of now, your logic strikes me as sound. I just have such a visceral distaste for this tactic, having read about how scared some of these students are, how their families back home have gotten dragged into this (because the doxxing trucks follow them home for break), etc.
I probably disagree very strongly with many of these students on the underlying issues, but I take no pleasure in their suffering. Having someone followed around by a truck with a giant sign calling them an antisemite, replete with their face and name, seems like a disproportionate response to signing a letter or petition.
And yes, your solicitousness of "students who are doxxed" versus "Nazis" appears to me entirely based on your subjective view of the moral value of the speech being given. If an 18 year old marches through Skokie with the Nazi Party or that same 18 year old marches past St. Patrick's Cathedral with ACT-UP or that same 18 year old marches in support of the Intifada or that same 18 year old marches in support of abortion rights, the Constitutional analysis is the same. They are within their right to do so (unless threatening imminent lawless action) and the public is within their rights to name & shame them.
I would certainly be open to particularized protections for minors. But, the law does not view minors as having complete First Amendment rights. See all of the School Speech cases.
It is uncomfortable to admit that the speech is not harassment in your broad definition, but your argument is persuasive to me. I agree with the AO description of the sneering on behalf of the trio of female Presidents as academic hubris at its best, and the fact that they were overcoached on responses. Tone deaf is being kind to the hearing impaired to describe the question-response volley before Elise Stefanik. I would much prefer that tolerance of speech be higher and tolerance of bad behavior be lower, but in today's highly charged environment, that is a preference perhaps not achievable.
Dec 10, 2023·edited Dec 10, 2023Liked by David Lat
What makes this a tough issue is that there is a tension between applying the right incentives to the university administrators and expressing a coherent speech protective viewpoint and treating Jewish students equally.
The problem is that there are strong incentives for university administration to punish and prevent a wide range of racist, sexist, homophobic etc speech and they've consistently violated norms of free expression to do so in the past.
Now suppose that whenever an issue like this one comes up where their previous non-nuetral stance gets them in trouble comes up they can switch to a free expression defense and get support from those of us who want a culture on campus that allows for a wide range of debate. Their incentives will be to just make that move every time. Worse, if they make this move only when it's Jewish students being targeted they are necessarily treating them worse than similarly situated students.
It's hard because if you commit to critisize them now no matter what they do they have no good incentives either. If you let them say we now believe in free expression and accept that as good enough they get away with treating Jewish students worse and have every incentive to do it again.
So I think the right move is to say that they only get credit for a free speech defense if they take responsibility for the ways they violated that (inconsistent application) in the past and explain how they'll commit not to do so in the future.
In other words, they need to publicly identify the times that they intervened to protect other groups and violated free speech norms and say they were wrong to do so. That's the closest you can get to equalizing the way they treat Jewish students because at least you retroactively say that we shouldn't have intervened to defend these other groups.
I don't think the administrations of these colleges are prepared to do this.
David, thank you for sharing and having the courage to publish your thoughts. The title you chose piqued my curiosity about whether there might be more than one kind of free speech hypocrisy at work here. I can’t help but wonder whether serious, thoughtful people are being vilified rashly or for mere political gain.
A politician who holds office by virtue of being elected by voters is vilifying, for example, the President of Harvard because she purportedly “cannot answer the basic question: ‘Does calling for the genocide of Jews violate Harvard’s rules regarding bullying and harassment.’ ” But is that question as “basic” as it was billed?
On the one hand, it seems it should be easy for any sentient being to say that “calling” for “genocide” (especially in speech that is directed at particular individuals) constitutes “bullying and harassment.” On the other hand, it is much harder to say that the actual speech that Representative Stefanik targeted constituted any kind of “call” for “genocide.” You identified the following as (according to Representative Stefanik) purported “call[s]” for “genocide.”
“There is only one solution. Intifada revolution.”
“Globalize the Intifada.”
“From the river to the sea.”
Those sounded like protest slogans to me. I don’t have any idea how many people were expressing any such slogan or what else they were doing at the time, but I think those facts (not just the words) should be considered.
In light of the history of the expression “final solution” being horrifically abused and directed at the same people as the current allusion to “one solution,” I’m inclined to feel that the expression “one solution” is extremely offensive and extremely inappropriate. But to avoid being hypocritical, I couldn’t help but remind myself that maybe the current allusion to “solution” might be meant to remind people that the Israeli solution to the Palestinian problem—especially to those on the receiving end of that solution—sometimes (including right now) looks suspiciously similar to the earlier historical solution.
For similar reasons, targeting the expression “from the river to the sea” here really makes me wonder about who is being hypocritical. If I compare a map of what was Palestine with a map of what now is Israel, I cannot help but wonder who came up with that slogan and who actually is attempting to implement it. Then, I wonder if the people characterizing the slogan as a “call” for “genocide” also would characterize the current implementation to be genocide.
As for the use of the word “revolution,” it certainly does not necessarily mean violent revolution. Many of the most illustrious and enlightened of our Founders emphasized the non-violent meaning of revolution. They often thought of revolution as political evolution.
Thomas Jefferson, for example, trumpeted his first election as “the revolution of 1800” and argued it was “as real a revolution in the principles of our government as that of 76.”
John Adams (many years after the Revolutionary War) insisted that the "[American] Revolution was effected before the war [even] commenced. The Revolution was in the minds and hearts of the people; a change in” their “sentiments of their duties and obligations.” He insisted that “[t]his radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”
As you know, James Wilson was another of our most illustrious and most enlightened Founders. For those who don’t know, Wilson was one of the very few who signed both the Declaration of Independence and the Constitution, and he was one of the leading participants in drafting the Constitution (including linking the Declaration with the Constitution with the vital and stirring words of the Preamble) and in having the Constitution ratified. He was elected twice to the Continental Congress and later was a U.S. Supreme Court Justice.
Wilson emphasized the following view of “revolution” at the Pennsylvania convention for ratifying the Constitution: “America now exhibits to the world - a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another” and this “happy experience teaches us to view such revolutions in a very different light - to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society.”
Are people who are angry and outspoken about what has been happening in Gaza really merely "anti-semitic" or are they anti-killing massive numbers of civilians and massive, widespread destruction of people's homes? Are people who are angry and outspoken about killing massive numbers of civilians and massive, widespread destruction of people's homes in Ukraine really merely "anti-Russian"? Were people who were anti-war or anti-slavery or anti-discrimination of other kinds really "anti-American"?
David, I think there is a broader context that informs this issue. At one time, certainly when you were there, Jews represented a quarter of the student population at Harvard. My understanding is that it is now down to 5%. What is happening at Harvard is not simply students expressing their views. Antisemitism has become so pervasive among segments of the student body that there is now an atmosphere of hatred directed at Jewish students.
I'm a card-carrying member of the ACLU and I supported the right of Nazis to march through Skokie. But there was no danger of Nazis taking over Skokie. At some point the expression of hatred, even if it does not involve shouting in someone's face or physical conduct, becomes so widespread, that it constitutes harassment (or something worse). In the case of private institutions that are not constrained by the First Amendment, they have an obligation to prevent hatred in all its forms from taking over the institution.
Now I am not arguing for creating "safe spaces." No topic should be off the table in class, even antisemitism, but if taking action against widespread expressions of hatred is inconsistent with First Amendment restrictions on the government, it is nevertheless necessary for an entity dedicated to teaching students from all backgrounds. I am Jewish. I would recommend Jewish parents not send their children to Harvard (no offense, David, but I think there are a lot better schools out there anyway--but that is a different discussion). Harvard's President has made it crystal clear that it will take no real action to protect Jewish students. So Harvard steps back 100 years. We did just fine without it.
Thanks for these insights, Jon—and I actually think we agree on a lot. I don't dispute your overall point about context. (And I have discussed, with other parents of Jewish kids, the diminishing percentage of Jewish students at elite schools like Harvard.)
I guess my question is what would you specifically propose, in terms of "taking action against widespread expressions of hatred"?
We all agree that students who threaten individual Jewish students, to say nothing of students who physically accost them, should be disciplined. But what about students who peacefully attend a pro-Palestine rally where people have signs that say "from the river to the sea"? Should those students be punished?
And going to Nadine Strossen's point, if the students from the pro-Palestine rally are punished for endorsing genocide, what about students who go to a pro-Israel rally that defends Israel's military response? The folks on the other side call that "genocide" or "ethnic cleansing." Should the students at the pro-Israel rally get punished too?
I'm open to university speech policies that are content-neutral or go to time, place, and manner. If Jewish students are afraid because pro-Palestine rallies are too large or noisy, we can talk about regulating crowd size or noise. If they are afraid because people are hiding their faces with keffiyehs, we can talk about anti-masking rules. If the timing is troubling—e.g., late at night—we can have set hours for protesting. (I'm not saying I endorse any of these steps, since I haven't thought about them enough, but I'm saying we can talk about them.)
But I'm very uncomfortable with giving university administrators—or government officials, or any other authority—the power to police the substance of speech or pick a side in a hotly contested issue. We might like it when the power is used to shut down "from the river to the sea," but we don't know when and where it will be used next.
David, I don’t see this as a hard problem for the schools to remedy consistent with the First Amendment and the safety of students.
If I were in charge, this is what I would do.
(1) have a zero tolerance policy for any student involved in a violent act against another student subject to a due process determination of guilt. My guess is that these schools have such a policy already.
(2) require that any student found to have defaced or destroyed property, such as painting a swastika on a dorm room door or someone’s car will be suspended for the following semester.
(3)The school will provide a space where students can gather to protest anything so long as there is no effort to incite violence.
(4) At a different location on campus, at some distance from the first location, students will be permitted to conduct a counter demonstration
(5) Before students are permitted to demonstrate at either location, they must provide notice to the school so that appropriate security arrangements can be made.
(6) students can discuss any topic, but any student who directs hate speech against another student will receive a warning that if such conduct occurs again they will be suspended.
(7) And finally, any student who prevents another student from walking away from any speech, or is followed while attempting to break away from that speech, will be suspended for the semester.
If students believe that they must protest something immediately, TOUGH. All students will be required to sign a statement that they are aware of school policy on speech and if they are unwilling to agree to abide with this policy, they should go elsewhere.
Of course there are other sanctions that can be used to achieve the same result, and regardless of what scheme is chosen, it should be revised if something doesn’t work.
Of course, this policy only applies to hate speech. Students can still conduct a sit-in in the President’s office. They can burn their draft cards anywhere on campus. They can protest any government policy. We don’t want to interfere with tradition.
I don't disagree with most of your proposals. But points (1), (2), (6), and (7) are already in place at most of these schools, and the presidents all testified that harassing or violent actions directed at individuals, like the ones you describe, are subject to discipline.
What is at issue instead are protests where no words or actions are directed at individual students, but people hold up signs or chant slogans like "globalize the Intifada" or "from the river to the sea." Stefanik wants to make participating in such protests subject to university discipline. I disagree.
Regarding your proposal of free-speech zones, the concept sounds reasonable, but historically the implementation has been problematic. See this discussion from FIRE:
The problem is that at this point the universities are in a catch 22. In the past they've systematically been willing to violate norms of freedom of expression to protect students from racism, sexism etc etc.
So now if at this point they fail to do the same to protect Jewish students that will be treating Jewish students worse than other similarly situated students. It's analagous to some very racist town having a procedure to elect some official and then suddenly deciding that position is unecessary the moment a black canidate gets elected. Even if the position was something obviously bad, eg, judging the morality of all proposed buisnesses, abolishing it now evidences a different standard for blacks and whites.
This is a hard problem and I don't know what can be done to fix it. I obviously don't think we should support continued violations of free speech norms but there is a message sent when this is the point universities decided to jettison their previous approach.
Behind the criticism though, of these three, is the years and many incidents whereby conservative speech has been shut down and the university has failed to protect speakers whose viewpoints have been unpopular with a very vocal minority willing to undertake to stop the speech "by all means necessary." With these poor credentials then, the voiced commitment to free speech rings hollow, and when we hear such stentorian commitments to it voiced only NOW do our ears perk up.
Simply put, I do NOT believe them when they said that they would react exactly the same if other minorities were denounced. I believe there would be serious repercussions for the speaker. Not a rousing defense of free speech.
So, yes. the commitment to free speech isn't itself a problem. It would be in fact commendable had it not been that until now it was mostly lacking. Hearing a commitment to free speech ONLY when that speech is calling for your head doesn't sound a like a call for free speech, and only a fool would take it so.
And I don't disagree with you, as I basically say at multiple points in the essay. E.g., the paragraph condemning free-speech selectivity, as well as the discussion of how university leaders are conveniently discovering free speech now that Jews are the ones being killed (as opposed to some other minority).
So I guess the question is, in light of all the bad stuff in the past, where do we go from here? My general view, implicit in this essay, is that we should try for a "reset," in which we return to valuing free speech across the board—as opposed to "let's use our power to try and cancel the other side, since they've been doing that to us for years."
Yes, but I think that's the main point, not a "yes but" one. Hearing calls for free speech only now are perhaps even worse given how much we know that they've been avoided till now.
Where do we go now? I'd say if an institution wants to rededicate itself to the purpose of a university and administer the Chicago principles, it needs to start with someone unstained by complicity with the old order.
In short, they need new leadership. It may be a stiff price to pay, but I think it's necessary if they are to convince people that a rededication to free speech is anything but a PR fire drill.
Dec 18, 2023·edited Dec 18, 2023Liked by David Lat
I'm extremely late to the party but I think the First Amendment framing of the issue misses the real underlying disagreement: do the slogans in question actually refer to genocide? In my estimation, if a student were to publicly take an unequivocally pro-genocide position (e.g., the IDF should exterminate all Gazans, or Palestinians would be in the right to take Israeli territory and ethnically cleanse those territories) and be expelled by the school on that basis, not many people would bat an eye, even if that outcome is technically inconsistent with the Code of Conduct or First Amendment principles. The real issue is that slogans like "globalize the intifada" and "from the river to the sea" are basically Rorschach tests and the listener can read into them what they want. To some people they might be obvious pro-genocide messages but to others they might mean that the speaker advocates a one-state solution or some other form of justice or recompense for Palestinians. A related issue is the nebulous definition of genocide. Some conduct obviously constitutes genocide (e.g. the Holocaust) but the definition under international law includes conduct like "causing serious mental harm to members of the group" and "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Frankly, depending on how expansively one reads those definitions, a lot of what is happening around the world could be called genocide, and casual use of the term by politicians and governments as part of lawfare has only exacerbated the unclarity. This, in my opinion, is why a "genocide exception" to permissible speech on campus is unworkable. Maybe a "conduct universally recognized as heinous (e.g. murder, rape, torture) exception" gets closer to the line that people would instinctively want to draw.
This is a difficult and a complex issue and you do an admirable job of tackling it especially given your background. I would simply suggest that the challenge for these leaders is that they couched their language in verbose and heavily "lawyered" language that made it difficult for the layperson to understand let alone relate to. This likely flustered and frustrated the politicians who had their own agendas entering into the hearing so much as did the same for the viewing public who, likewise, each came into it with their own agendas and perspectives.
After further thought, here is the fundamental problem that I see with David’s “free speech culture” stance.
Either a school says (1) all that would be protected under the First Amendment (if we were a state actor) is permitted here
Or
(2) there are limits (short of First Amendment limits) that we impose on members of the University community.
If it is #1, then people who engage in speech do not get protection from the First Amendment responses of people offended by the original statement.
If it is #2, then both the original speaker and the responders are subject to university discipline for anything they say AND the university is subject to public criticism for failure to discipline people who say/do things that the general public finds outrageous.
Neither #1 nor #2 fit into your vision for “free speech culture”, but there is no other stable equilibrium.
I'm afraid I'm not being clear—apologies. My culture/values point goes mainly to what individuals voluntarily do, not to what either government or school authorities require us to do (although I do think institutions can play a role in fostering or promoting certain values).
As a matter of culture or values, we should treat each other the way we would want to be treated, even if that can't be required by law or university policy. So we should try to reason with or persuade people rather than immediately trying to run their careers or lives (for speech they might reconsider or even disavow if they understood the situation better).
So the "culture" or "values" point doesn't really go to university policy. It goes more to how we act as members of our community, and it is my modest contention that we should try whenever possible not to be a**holes—even if people are a**holes to us.
When I was in seventh grade, I got bullied a lot. I took the students who were mean to me to the school canteen and bought them candy—not because they forced me to buy them candy, but because I thought it might make them improve their behavior. It did.
As noted above, the culture/values point isn't entirely divorced from policy, since there are certainly things institutions can do to promote free-speech culture and values. But I think we also need to look to ourselves and the ways in which we act as individuals.
But you wrote above, "As I argue in this essay, I generally admire (1) our free-speech case law, as well as what I'd more broadly call "free-speech culture" and "free-speech values." So I support importing the law, in both letter and spirit, into (2) university policy, as discussed here, and (3) norms and values."
Importing the law into "norms and values" means that people have the right to respond to speech that they find offensive by using all of their rhetorical and organizing skills to "name and shame" people who have made those offensive statements.
What it appears you really want is for people to "turn the other cheek" when offended. While that is a stance, it is not a "free-speech culture" stance. Rather, it is a Christian stance. That stance may very well be more moral then mine, but it is absolutely not a celebration of the power of free-speech.
David, you wrote a long column on a morally complex topic, incorporating the widely divergent views of people you respect, addressing concerns and objections from all sides, and coming to a well-supported, reasonable, sustainable conclusion. What's WRONG with you?
I am an old lawyer, now retired, who remembers very well the chilling march through Skokie, IL, so many years ago. My feeling then is dwarfed by my feeling now. Not because defense of 1st Amendment rights are (or should be) any less robust, but because of context. We entrust our children to these universities, and we need to expect more from them.
Violence such as that suffered by the young Jewish student at the hands of the Harvard Law Review Editor and his “friends”, repeated in various heartbreaking forms all over the campuses of our nation, is the context that frames the fear and intimidation created, intentionally so, by those who chant (in so many words) “we are coming for you”.
Yes, we, especially as lawyers, can find a colorable defense in the 1st Amendment. But I ask, who are we, in the context of a university, when we do not call those to account (in a chosen code of conduct) for the harm inflicted by mob behavior directly calling for the genocide of a people? Especially so, when in context, all around us are individuals threatened, harassed, and intimidated by actual physical violence in furtherance of that very call?
I ask more of our educators. I would hope for more from all of us.
Thank you, Nancy. Well said.
This whole issue strikes me as being approached through the wrong lens by most commentators. This is fundamentally a discrimination issue, not a speech issue or a harassment issue.
It isn't Rep. Stefanik's place to tell Harvard "This specific speech doesn't violate your Code of Conduct? Really? Yes it does" -- Harvard's policies are its own, and as a private institution it can set those policies however it so chooses! Rather, the issue is that Harvard uses its Code of Conduct as a sword (for preferred voices) and a shield (against disfavored criticism -- Jewish in this instance).
The core issue is that these universities have used their Codes of Conduct in the past on a hair-trigger, with aggressive breadth in interpretation, to advance the universities' preferred groups -- but now the universities have a different, much higher, standard for Jewish students. This is fundamentally discriminatory. I cannot tell if this has been a wake-up call for the universities of how far their policies have taken them, but I can only hope so.
I too hope for a "no more statements" approach to these issues, but the administrators/faculty that have led the universities down this path do not strike me as likely to unwind the machine they've put in place. Society's plummeting trust in universities as an institution feels very apt here -- where I think all of us think the least likely outcome is that the universities admit to hypocritical and bad behavior in the past while committing to do better in the future to fairly, and equally, apply their policies for all people going forward.
I agree with much of your analysis on this being a discrimination issue, which I condemn in the piece, and I also share some of your skepticism about whether university leaders will do better going forward.
But one reason for optimism (which I didn't have the space to get into here) is how donors are now starting to use their clout to address the discrimination problem. Private universities can engage in viewpoint discrimination, but private individuals can withhold their donations when universities do. Greg Lukianoff had a good piece about this:
https://www.nationalreview.com/2023/10/how-donors-can-help-fix-our-broken-campuses/
I mean this genuinely, do you honestly feel like donors have any real influence on institutions with endowments the size of Harvard ($50 bn+), Penn ($21 bn) or MIT ($23.5 bn)? A year with a simple 5% return (below the running rate of such institutions), is in the billions of dollars a year. Even record breaking donations that are $100 million plus that get schools named after the donors suddenly feel insignificant in the face of immense treasure chest endowments.
I suspect donors had significantly more influence over universities 40+ years ago -- not that a donor-influenced policy is necessarily an ideal model to run a university either. But the financialization of these universities and their massive endowments has moved the needle to genuine independence. I doubt anything other than government intervention (or lawsuits, enforced by the judicial system) can impose change on these universities that they do not seek out themselves.
I agree with you that donors don’t have as much influence as they used to. But all the scrambling you’re now seeing among the leaders of elite schools is, I suspect, largely a product of SOME donor clout.
And there’s no way to prove this counterfactual, but I think things would be so much worse without donor pressure. Instead of debating over whether to fly the Israeli flag (which came up at the hearing), they’d be flying the Palestinian flag, no debate necessary.
I generally agree and am hopeful it is true, but here are a few reasons why I think holding out for donors is likely a fools errand. (I was writing this as an "Edit to Add" to my prior post, but saw you've commented -- don't feel any obligation to respond I just wanted to voice my frustration more fully):
(1) for better or worse, US News rankings rewards (or rewarded, maybe it has changed) participation among alumni in terms of donations as a percentage basis. With elite schools dropping out of US News rankings, they're flexing their newly found independence, and no longer need to care whether their decisions will impact the volume of alumni who donate to them as it pertains to rankings;
(2) there's always going to be an undercurrent of people seeking to donate to schools to get their kids (or grandchildren) into these elite institutions due to the immense career and social benefits that come from them. While the wealthiest -- who can make noise and shut off the donation spigot because their offspring/families have generational wealth that is independent from any specific university-affiliated career boost -- can vocally drop out of donating, I suspect a number of upper-middle-class alumni will continue to donate to give their kids whatever edge they can. Until our high-professional careers become de-Ivied (for lack of a better term), I don't know if there's any real movement to be had in this regard. While I am not Jewish, I have many lawyer friends who are, and while they're disappointed with the stance universities have taken -- I haven't really heard anyone say "I'd never let my kid go to Harvard". Rather, they know these institutions have discriminated against Jews in the past, but still value the benefits that come from such schools above and beyond institutional discrimination;
(3) Trustees/Boards are the real points of influence at universities. While historically they were disproportionately composed of the largest and most influential donors, the last 10 years has seen significant diversification of the trustees/boards of every institution. Such diversification is, hopefully, good (ideally it would be viewpoint diversity, but that's another issue), but it has diluted the influence of donors more generally. Further, it is an entrenchment of the independence (from donors, generally) the universities seek (and they now have due to their tremendous endowments). Which I think in an ideal world is maybe/probably good? Universities, pursuing truth and knowledge, should be independent. But I don't think anyone can look back on the last ten years and say the direction universities have taken have pointed them towards anything other than ideological conformity and in-group signaling.
David two columns in a week, Christmas came early this year! I have not had a chance to review all of the comments yet,so someone may have made this observation. Oliver Weissman had an excellent observation about this issue In today’s issue of the Free Press.
He noted that the hypocrisy is not so much free speech but the issue of safetyism. That these Universities promote safe spaces on campus or disinvite speakers on campus when some group of students don’t like the persons political point of view. Harvard a few years ago did not defend the professor who had the wild notion that the University shouldn’t police what costume a college student could wear for Halloween or that students and professors should be held to account for the ever shifting crime of micro aggressions.
So, it seems to me that it is quite reasonable that these University presidents were hoisted on their petard not for their sudden appreciation for the First Amendment but for their hypocrisy surrounding these issues.
I also find it interesting that the DEI infrastructure is incapable of addressing this issues. I guess if you not a chosen “victim” then your shit out of luck.
I totally agree with you and Oliver Wiseman on the inconsistency (to put it charitably) that's going on here.
P.S. The Halloween controversy happened at Yale, not Harvard. My undergraduate alma mater is dead last in the FIRE free-speech rankings, but the costumes debacle happened at our rival to the south. ;-)
Great piece, and as a free speech die hard, I tend to agree with you. I think what makes the current situation hard for many Jewish people like myself to swallow is that there is no doubt that, despite what the Harvard president may have said, a student or faculty member who called for the mass murder of Black people or trans people or whatever would be out on their butts in a second. But to be honest, I think protesters screaming “we need another Auschwitz here in Boston” would be too. The fact is that “globalize the intifada” and “from the river to the sea” are coded phrases and everyone can argue they mean this (murder Jews) or that (support the Palestinian political project).
Thanks Elaine, and I totally agree with you. There has long been a double standard when it comes to Jewish people versus other minorities, and it's indefensible.
As a fellow free-speech die-hard, I'm strongly opposed to what Lukianoff and Haidt refer to as "safetyism" in The Coddling of the American Mind. But if you're going to have it, it needs to protect all minorities, not just certain favored groups.
Totally agreed - the issue isn't whether a student should be kicked out if they actually advocated mass murder of an ethnic group. It's whether the slogans in question constitute such advocacy, and who gets to make that determination.
Thank you for a remarkably well-done column. Please know that my comments below are meant to add to the conversation and quibble with one point, not to denigrate the magnitude of your achievement in articulating your position.
Although you write "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", I do not think you really accept that position. All of the speech-response to which you point (by universities and by private employers) is NOT prohibited by the First Amendment because it is not state action. "Cancel culture" (which you oppose) is just another way to say "private actors exercising the First Amendment rights of free speech and free association to denounce and/or decline to work with people who espouse viewpoints that they find odious." I do not believe that a person can be anti-"cancel culture" and pro-First Amendment. Rather, you are describing a world where people should have the ability to say/do whatever they want, but people who are horrified by those statements/actions should not be free to scream from the highest mountain and take action to free themselves of interactions with (or financial support to) the person that has espoused an idea that they find loathesome.
Thanks for the thoughtful comment, Mitch! Will you be at the holiday party next week?
I'd distinguish between three things:
1. Law, including both constitutional law (the First Amendment) and statutory law about things like discrimination and harassment.
2. University policy (when it comes to private universities).
3. Norms and values.
As I argue in this essay, I generally admire (1) our free-speech case law, as well as what I'd more broadly call "free-speech culture" and "free-speech values." So I support importing the law, in both letter and spirit, into (2) university policy, as discussed here, and (3) norms and values.
So on the cancel-culture stuff, which mostly falls into (3)—and by the way, a lot of the stuff that us anti-cancelers oppose IS state action (like the Stop WOKE Act)—I would say that even if you might have a legal right to attack someone, it would be preferable for you to have a respectful dialogue with them. Before calling for their firing—which, again, you have the legal right to do—try talking to them, explaining what you find troubling about their speech. Or try explaining, to the neutral people in the middle that you're trying to win over, why the person is wrong.
Opposing cancel culture is about trying to view others with a spirit of charity and grace, where we don't immediately assume bad faith or prejudice, try to ruin their career or their life, etc. I like the framework articulated by Professor Loretta Ross, where we focus on "calling in" rather than "calling out" or canceling (links below).
https://www.nytimes.com/2020/11/19/style/loretta-ross-smith-college-cancel-culture.html
https://www.nytimes.com/2019/08/17/opinion/sunday/cancel-culture-call-out.html
If I get over my current cough/infection, I will be at the DNJ Holiday Party.
I fundamentally disagree with you about the idea of "free-speech culture" being imported into university policy -- if that it going to be enforced at the point of a spear wielded by government officials. I have a HUGE problem with Rep. Stefanik threatening the tax-exempt status of universities that fail to adhere to view of "free-speech culture" that she thinks should prevail. If "free-speech culture" being imported into university policy means that you and other anti-"cancel culture" people are going to call out universities that do not reach the balance that you think is appropriate in deciding speech issues on campus, then you literally have abandoned your position and adopted mine. There is no "anti-'cancel culture'" stand that withstands scrutiny. Either it (a) devolves into state action to enforce the new orthodoxy ("anti-'cancel culture'") or (b) is just another level of private actors vehemently (or non-vehemently) asserting their privately held views about actions taken by third parties.
To give a paradigmatic example:
1. I believe that the American Nazi Party has the right to hold a parade in New York City (my home).
2. I also believe that it is my right to:
a. Counter-protest against that parade;
b. Take photographs of everyone who marches in that parade;
c. Publicly identify everyone who marches in that parade;
d. Boycott any business that continues to employ any person who marches in that parade, except
e. A governmental entity cannot fire a person who marches in that parade for having marched in that parade, outside of certain well-defined categories.
If you believe that is "cancel culture", then I plead guilty to believing in "cancel culture".
I’m glad you raised this point, since I’d like to get your thoughts on an issue I’ve been struggling with (and don’t have a firm view on): “doxxing” of students (who are more sympathetic than Nazis), like students who find their names and faces plastered on trucks or Google-bombed because they did something controversial (like signing a pro-Palestine statement or protesting Judge Duncan).
On the one hand, I think the practice of doxxing is pretty awful. On the other hand, maybe it’s not that different from your Nazi hypo—except as to the content of the speech, but I hate creating speech rules or policies that turn on normative judgments about the substance of the speech.
And let’s say we are troubled by the doxxing of students. What rules can we come up with that don’t infringe on the First Amendment rights of others (like your right to call out the Nazis)?
(And I’m going to stipulate here that the info used for doxxing is both true and publicly available, e.g., through simple Google searches. I don’t want folks to “fight the hypothetical” by saying the info is defamatory or was obtained through commission of a privacy tort.)
If we believe in the First Amendment, then "doxxing" of the sort that you described is legal and falls within the sort of vigorous speech that a Free Speech Culture would support.
To be clear, (a) SWATting is not legal, (b) conveying threats of bodily harm are not legal, and (c) constant contact that is abusive without any reference to the views expressed in the contact are not legal (calling 60 times/hour). But letting the whole world know that Person X said/did Thing Y and publicly available information shows that they can be found in Place Z is well-within the First Amendment.
Before you respond to this, please compare it to the parade-of-horribles that this country is already enduring from the post-Heller view of the Second Amendment.
Thanks for these insights, Mitch. I'm still mulling this over, but as of now, your logic strikes me as sound. I just have such a visceral distaste for this tactic, having read about how scared some of these students are, how their families back home have gotten dragged into this (because the doxxing trucks follow them home for break), etc.
I probably disagree very strongly with many of these students on the underlying issues, but I take no pleasure in their suffering. Having someone followed around by a truck with a giant sign calling them an antisemite, replete with their face and name, seems like a disproportionate response to signing a letter or petition.
And yes, your solicitousness of "students who are doxxed" versus "Nazis" appears to me entirely based on your subjective view of the moral value of the speech being given. If an 18 year old marches through Skokie with the Nazi Party or that same 18 year old marches past St. Patrick's Cathedral with ACT-UP or that same 18 year old marches in support of the Intifada or that same 18 year old marches in support of abortion rights, the Constitutional analysis is the same. They are within their right to do so (unless threatening imminent lawless action) and the public is within their rights to name & shame them.
Finally, the fear of the repercussions of public speech on controversial issues is precisely why the Supreme Court has upheld the protections on anonymous speech. Talley v. California (https://caselaw.findlaw.com/court/us-supreme-court/362/60.html), McIntyre v. Ohio Elections Commission (https://caselaw.findlaw.com/court/us-supreme-court/514/334.html) and NAACP v. Alabama (https://caselaw.findlaw.com/court/us-supreme-court/357/449.html) all stand for the proposition that the right to anonymous speech must be protected because some people will not be able to bear the weight of publicly stating their opinions.
I would certainly be open to particularized protections for minors. But, the law does not view minors as having complete First Amendment rights. See all of the School Speech cases.
It is uncomfortable to admit that the speech is not harassment in your broad definition, but your argument is persuasive to me. I agree with the AO description of the sneering on behalf of the trio of female Presidents as academic hubris at its best, and the fact that they were overcoached on responses. Tone deaf is being kind to the hearing impaired to describe the question-response volley before Elise Stefanik. I would much prefer that tolerance of speech be higher and tolerance of bad behavior be lower, but in today's highly charged environment, that is a preference perhaps not achievable.
What makes this a tough issue is that there is a tension between applying the right incentives to the university administrators and expressing a coherent speech protective viewpoint and treating Jewish students equally.
The problem is that there are strong incentives for university administration to punish and prevent a wide range of racist, sexist, homophobic etc speech and they've consistently violated norms of free expression to do so in the past.
Now suppose that whenever an issue like this one comes up where their previous non-nuetral stance gets them in trouble comes up they can switch to a free expression defense and get support from those of us who want a culture on campus that allows for a wide range of debate. Their incentives will be to just make that move every time. Worse, if they make this move only when it's Jewish students being targeted they are necessarily treating them worse than similarly situated students.
It's hard because if you commit to critisize them now no matter what they do they have no good incentives either. If you let them say we now believe in free expression and accept that as good enough they get away with treating Jewish students worse and have every incentive to do it again.
So I think the right move is to say that they only get credit for a free speech defense if they take responsibility for the ways they violated that (inconsistent application) in the past and explain how they'll commit not to do so in the future.
In other words, they need to publicly identify the times that they intervened to protect other groups and violated free speech norms and say they were wrong to do so. That's the closest you can get to equalizing the way they treat Jewish students because at least you retroactively say that we shouldn't have intervened to defend these other groups.
I don't think the administrations of these colleges are prepared to do this.
David, thank you for sharing and having the courage to publish your thoughts. The title you chose piqued my curiosity about whether there might be more than one kind of free speech hypocrisy at work here. I can’t help but wonder whether serious, thoughtful people are being vilified rashly or for mere political gain.
A politician who holds office by virtue of being elected by voters is vilifying, for example, the President of Harvard because she purportedly “cannot answer the basic question: ‘Does calling for the genocide of Jews violate Harvard’s rules regarding bullying and harassment.’ ” But is that question as “basic” as it was billed?
On the one hand, it seems it should be easy for any sentient being to say that “calling” for “genocide” (especially in speech that is directed at particular individuals) constitutes “bullying and harassment.” On the other hand, it is much harder to say that the actual speech that Representative Stefanik targeted constituted any kind of “call” for “genocide.” You identified the following as (according to Representative Stefanik) purported “call[s]” for “genocide.”
“There is only one solution. Intifada revolution.”
“Globalize the Intifada.”
“From the river to the sea.”
Those sounded like protest slogans to me. I don’t have any idea how many people were expressing any such slogan or what else they were doing at the time, but I think those facts (not just the words) should be considered.
In light of the history of the expression “final solution” being horrifically abused and directed at the same people as the current allusion to “one solution,” I’m inclined to feel that the expression “one solution” is extremely offensive and extremely inappropriate. But to avoid being hypocritical, I couldn’t help but remind myself that maybe the current allusion to “solution” might be meant to remind people that the Israeli solution to the Palestinian problem—especially to those on the receiving end of that solution—sometimes (including right now) looks suspiciously similar to the earlier historical solution.
For similar reasons, targeting the expression “from the river to the sea” here really makes me wonder about who is being hypocritical. If I compare a map of what was Palestine with a map of what now is Israel, I cannot help but wonder who came up with that slogan and who actually is attempting to implement it. Then, I wonder if the people characterizing the slogan as a “call” for “genocide” also would characterize the current implementation to be genocide.
As for the use of the word “revolution,” it certainly does not necessarily mean violent revolution. Many of the most illustrious and enlightened of our Founders emphasized the non-violent meaning of revolution. They often thought of revolution as political evolution.
Thomas Jefferson, for example, trumpeted his first election as “the revolution of 1800” and argued it was “as real a revolution in the principles of our government as that of 76.”
John Adams (many years after the Revolutionary War) insisted that the "[American] Revolution was effected before the war [even] commenced. The Revolution was in the minds and hearts of the people; a change in” their “sentiments of their duties and obligations.” He insisted that “[t]his radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”
As you know, James Wilson was another of our most illustrious and most enlightened Founders. For those who don’t know, Wilson was one of the very few who signed both the Declaration of Independence and the Constitution, and he was one of the leading participants in drafting the Constitution (including linking the Declaration with the Constitution with the vital and stirring words of the Preamble) and in having the Constitution ratified. He was elected twice to the Continental Congress and later was a U.S. Supreme Court Justice.
Wilson emphasized the following view of “revolution” at the Pennsylvania convention for ratifying the Constitution: “America now exhibits to the world - a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another” and this “happy experience teaches us to view such revolutions in a very different light - to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society.”
So did President Gay really get a fair hearing?
Are people who are angry and outspoken about what has been happening in Gaza really merely "anti-semitic" or are they anti-killing massive numbers of civilians and massive, widespread destruction of people's homes? Are people who are angry and outspoken about killing massive numbers of civilians and massive, widespread destruction of people's homes in Ukraine really merely "anti-Russian"? Were people who were anti-war or anti-slavery or anti-discrimination of other kinds really "anti-American"?
David, I think there is a broader context that informs this issue. At one time, certainly when you were there, Jews represented a quarter of the student population at Harvard. My understanding is that it is now down to 5%. What is happening at Harvard is not simply students expressing their views. Antisemitism has become so pervasive among segments of the student body that there is now an atmosphere of hatred directed at Jewish students.
I'm a card-carrying member of the ACLU and I supported the right of Nazis to march through Skokie. But there was no danger of Nazis taking over Skokie. At some point the expression of hatred, even if it does not involve shouting in someone's face or physical conduct, becomes so widespread, that it constitutes harassment (or something worse). In the case of private institutions that are not constrained by the First Amendment, they have an obligation to prevent hatred in all its forms from taking over the institution.
Now I am not arguing for creating "safe spaces." No topic should be off the table in class, even antisemitism, but if taking action against widespread expressions of hatred is inconsistent with First Amendment restrictions on the government, it is nevertheless necessary for an entity dedicated to teaching students from all backgrounds. I am Jewish. I would recommend Jewish parents not send their children to Harvard (no offense, David, but I think there are a lot better schools out there anyway--but that is a different discussion). Harvard's President has made it crystal clear that it will take no real action to protect Jewish students. So Harvard steps back 100 years. We did just fine without it.
Thanks for these insights, Jon—and I actually think we agree on a lot. I don't dispute your overall point about context. (And I have discussed, with other parents of Jewish kids, the diminishing percentage of Jewish students at elite schools like Harvard.)
I guess my question is what would you specifically propose, in terms of "taking action against widespread expressions of hatred"?
We all agree that students who threaten individual Jewish students, to say nothing of students who physically accost them, should be disciplined. But what about students who peacefully attend a pro-Palestine rally where people have signs that say "from the river to the sea"? Should those students be punished?
And going to Nadine Strossen's point, if the students from the pro-Palestine rally are punished for endorsing genocide, what about students who go to a pro-Israel rally that defends Israel's military response? The folks on the other side call that "genocide" or "ethnic cleansing." Should the students at the pro-Israel rally get punished too?
I'm open to university speech policies that are content-neutral or go to time, place, and manner. If Jewish students are afraid because pro-Palestine rallies are too large or noisy, we can talk about regulating crowd size or noise. If they are afraid because people are hiding their faces with keffiyehs, we can talk about anti-masking rules. If the timing is troubling—e.g., late at night—we can have set hours for protesting. (I'm not saying I endorse any of these steps, since I haven't thought about them enough, but I'm saying we can talk about them.)
But I'm very uncomfortable with giving university administrators—or government officials, or any other authority—the power to police the substance of speech or pick a side in a hotly contested issue. We might like it when the power is used to shut down "from the river to the sea," but we don't know when and where it will be used next.
David, I don’t see this as a hard problem for the schools to remedy consistent with the First Amendment and the safety of students.
If I were in charge, this is what I would do.
(1) have a zero tolerance policy for any student involved in a violent act against another student subject to a due process determination of guilt. My guess is that these schools have such a policy already.
(2) require that any student found to have defaced or destroyed property, such as painting a swastika on a dorm room door or someone’s car will be suspended for the following semester.
(3)The school will provide a space where students can gather to protest anything so long as there is no effort to incite violence.
(4) At a different location on campus, at some distance from the first location, students will be permitted to conduct a counter demonstration
(5) Before students are permitted to demonstrate at either location, they must provide notice to the school so that appropriate security arrangements can be made.
(6) students can discuss any topic, but any student who directs hate speech against another student will receive a warning that if such conduct occurs again they will be suspended.
(7) And finally, any student who prevents another student from walking away from any speech, or is followed while attempting to break away from that speech, will be suspended for the semester.
If students believe that they must protest something immediately, TOUGH. All students will be required to sign a statement that they are aware of school policy on speech and if they are unwilling to agree to abide with this policy, they should go elsewhere.
Of course there are other sanctions that can be used to achieve the same result, and regardless of what scheme is chosen, it should be revised if something doesn’t work.
Of course, this policy only applies to hate speech. Students can still conduct a sit-in in the President’s office. They can burn their draft cards anywhere on campus. They can protest any government policy. We don’t want to interfere with tradition.
I don't disagree with most of your proposals. But points (1), (2), (6), and (7) are already in place at most of these schools, and the presidents all testified that harassing or violent actions directed at individuals, like the ones you describe, are subject to discipline.
What is at issue instead are protests where no words or actions are directed at individual students, but people hold up signs or chant slogans like "globalize the Intifada" or "from the river to the sea." Stefanik wants to make participating in such protests subject to university discipline. I disagree.
Regarding your proposal of free-speech zones, the concept sounds reasonable, but historically the implementation has been problematic. See this discussion from FIRE:
https://www.thefire.org/research-learn/free-speech-zones
The problem is that at this point the universities are in a catch 22. In the past they've systematically been willing to violate norms of freedom of expression to protect students from racism, sexism etc etc.
So now if at this point they fail to do the same to protect Jewish students that will be treating Jewish students worse than other similarly situated students. It's analagous to some very racist town having a procedure to elect some official and then suddenly deciding that position is unecessary the moment a black canidate gets elected. Even if the position was something obviously bad, eg, judging the morality of all proposed buisnesses, abolishing it now evidences a different standard for blacks and whites.
This is a hard problem and I don't know what can be done to fix it. I obviously don't think we should support continued violations of free speech norms but there is a message sent when this is the point universities decided to jettison their previous approach.
I 100% agree with you in a vacuum.
Behind the criticism though, of these three, is the years and many incidents whereby conservative speech has been shut down and the university has failed to protect speakers whose viewpoints have been unpopular with a very vocal minority willing to undertake to stop the speech "by all means necessary." With these poor credentials then, the voiced commitment to free speech rings hollow, and when we hear such stentorian commitments to it voiced only NOW do our ears perk up.
Simply put, I do NOT believe them when they said that they would react exactly the same if other minorities were denounced. I believe there would be serious repercussions for the speaker. Not a rousing defense of free speech.
So, yes. the commitment to free speech isn't itself a problem. It would be in fact commendable had it not been that until now it was mostly lacking. Hearing a commitment to free speech ONLY when that speech is calling for your head doesn't sound a like a call for free speech, and only a fool would take it so.
And I don't disagree with you, as I basically say at multiple points in the essay. E.g., the paragraph condemning free-speech selectivity, as well as the discussion of how university leaders are conveniently discovering free speech now that Jews are the ones being killed (as opposed to some other minority).
So I guess the question is, in light of all the bad stuff in the past, where do we go from here? My general view, implicit in this essay, is that we should try for a "reset," in which we return to valuing free speech across the board—as opposed to "let's use our power to try and cancel the other side, since they've been doing that to us for years."
Yes, but I think that's the main point, not a "yes but" one. Hearing calls for free speech only now are perhaps even worse given how much we know that they've been avoided till now.
Where do we go now? I'd say if an institution wants to rededicate itself to the purpose of a university and administer the Chicago principles, it needs to start with someone unstained by complicity with the old order.
In short, they need new leadership. It may be a stiff price to pay, but I think it's necessary if they are to convince people that a rededication to free speech is anything but a PR fire drill.
Well said and well done, David
I'm extremely late to the party but I think the First Amendment framing of the issue misses the real underlying disagreement: do the slogans in question actually refer to genocide? In my estimation, if a student were to publicly take an unequivocally pro-genocide position (e.g., the IDF should exterminate all Gazans, or Palestinians would be in the right to take Israeli territory and ethnically cleanse those territories) and be expelled by the school on that basis, not many people would bat an eye, even if that outcome is technically inconsistent with the Code of Conduct or First Amendment principles. The real issue is that slogans like "globalize the intifada" and "from the river to the sea" are basically Rorschach tests and the listener can read into them what they want. To some people they might be obvious pro-genocide messages but to others they might mean that the speaker advocates a one-state solution or some other form of justice or recompense for Palestinians. A related issue is the nebulous definition of genocide. Some conduct obviously constitutes genocide (e.g. the Holocaust) but the definition under international law includes conduct like "causing serious mental harm to members of the group" and "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Frankly, depending on how expansively one reads those definitions, a lot of what is happening around the world could be called genocide, and casual use of the term by politicians and governments as part of lawfare has only exacerbated the unclarity. This, in my opinion, is why a "genocide exception" to permissible speech on campus is unworkable. Maybe a "conduct universally recognized as heinous (e.g. murder, rape, torture) exception" gets closer to the line that people would instinctively want to draw.
This is a difficult and a complex issue and you do an admirable job of tackling it especially given your background. I would simply suggest that the challenge for these leaders is that they couched their language in verbose and heavily "lawyered" language that made it difficult for the layperson to understand let alone relate to. This likely flustered and frustrated the politicians who had their own agendas entering into the hearing so much as did the same for the viewing public who, likewise, each came into it with their own agendas and perspectives.
After further thought, here is the fundamental problem that I see with David’s “free speech culture” stance.
Either a school says (1) all that would be protected under the First Amendment (if we were a state actor) is permitted here
Or
(2) there are limits (short of First Amendment limits) that we impose on members of the University community.
If it is #1, then people who engage in speech do not get protection from the First Amendment responses of people offended by the original statement.
If it is #2, then both the original speaker and the responders are subject to university discipline for anything they say AND the university is subject to public criticism for failure to discipline people who say/do things that the general public finds outrageous.
Neither #1 nor #2 fit into your vision for “free speech culture”, but there is no other stable equilibrium.
I'm afraid I'm not being clear—apologies. My culture/values point goes mainly to what individuals voluntarily do, not to what either government or school authorities require us to do (although I do think institutions can play a role in fostering or promoting certain values).
As a matter of culture or values, we should treat each other the way we would want to be treated, even if that can't be required by law or university policy. So we should try to reason with or persuade people rather than immediately trying to run their careers or lives (for speech they might reconsider or even disavow if they understood the situation better).
So the "culture" or "values" point doesn't really go to university policy. It goes more to how we act as members of our community, and it is my modest contention that we should try whenever possible not to be a**holes—even if people are a**holes to us.
When I was in seventh grade, I got bullied a lot. I took the students who were mean to me to the school canteen and bought them candy—not because they forced me to buy them candy, but because I thought it might make them improve their behavior. It did.
As noted above, the culture/values point isn't entirely divorced from policy, since there are certainly things institutions can do to promote free-speech culture and values. But I think we also need to look to ourselves and the ways in which we act as individuals.
But you wrote above, "As I argue in this essay, I generally admire (1) our free-speech case law, as well as what I'd more broadly call "free-speech culture" and "free-speech values." So I support importing the law, in both letter and spirit, into (2) university policy, as discussed here, and (3) norms and values."
Importing the law into "norms and values" means that people have the right to respond to speech that they find offensive by using all of their rhetorical and organizing skills to "name and shame" people who have made those offensive statements.
What it appears you really want is for people to "turn the other cheek" when offended. While that is a stance, it is not a "free-speech culture" stance. Rather, it is a Christian stance. That stance may very well be more moral then mine, but it is absolutely not a celebration of the power of free-speech.