After Resisting Demands To Punish 'Hate Speech,' Penn's President Capitulated. It Did Not Save Her Job.
Liz Magill and two other university leaders provoked bipartisan outrage by defending freedom of expression on campus.
University of Pennsylvania President Liz Magill resigned on Saturday, the day before the school's board of trustees was expected to consider her future in light of her response to antisemitism on campus. Magill's resignation came "four days after she appeared before Congress and appeared to evade the question of whether students who called for the genocide of Jews should be punished," as The New York Times puts it. Harvard President Claudine Gay and Massachusetts Institute of Technology President Sally Kornbluth, who testified at the same hearing last Tuesday, are charged with the same offense, and critics say they should resign too.
The bipartisan outrage provoked by Magill et al.'s testimony is puzzling when you consider their comments in context. All three witnesses already had condemned the October 7 Hamas attack on Israel and the anti-Jewish tenor of demonstrations that celebrated the group's barbaric terrorism as a legitimate form of resistance. But while unambiguously rejecting that position, the college presidents pushed back against the notion that students who endorse it should face discipline.
"We embrace a commitment to free expression even of views that are objectionable, offensive, [and] hateful," Gay said, although she added that such speech is cause for disciplinary action when it "crosses into conduct that violates our policies" against "bullying" and "harassment." In short, she said, "I have sought to confront hate while preserving free expression."
One might reasonably question how committed Harvard and Penn are to that principle. The two schools came in last and second to last, respectively, in the Foundation for Individual Rights and Expression's recent ranking of 248 colleges where students responded to a survey aimed at measuring each institution's tolerance for diverse opinions. MIT, which was rated "average," did substantially better. But officially, all three universities strive to maintain an environment where students are free to express their opinions, no matter how controversial, without fear of punishment. As private institutions, they are not bound by the First Amendment, but their speech policies are broadly similar to what the Constitution requires of government-run universities.
Penn, for example, promises respect for "the right to freedom of thought and expression." While the university "condemns hate speech, epithets, and racial, ethnic, sexual and religious slurs," it says "the content of student speech or expression is not by itself a basis for disciplinary action." Student speech nevertheless "may be subject to discipline when it violates applicable laws or University regulations or policies." The exceptions include harassment and threats of physical violence.
"Does calling for the genocide of Jews violate Penn's rules or code of conduct?" Rep. Elise Stefanik (R–N.Y.) asked Magill. "Yes or no?"
Since Penn's policy (like the First Amendment) generally protects even "hate speech," Magill could not give Stefanik the simple answer she demanded. "When it comes to prohibiting speech, even the most vile forms of speech, context matters," New York Times columnist David French notes. "A lot."
Magill tried to make that point. "If the speech turns into conduct," she said, "it can be harassment, yes." Stefanik was not happy with that answer:
Stefanik: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?
Magill: If it is directed and severe or pervasive, it is harassment.
Stefanik: So the answer is yes.
Magill: It is a context-dependent decision, congresswoman.
Stefanik: It's a context-dependent decision? That's your testimony today? Calling for the genocide of Jews is depending upon the context? That is not bullying or harassment? This is the easiest question to answer yes, Miss Magill. So is your testimony that you will not answer yes?
Magill: If the speech becomes conduct, it can become harassment, yes.
Stefanik: Conduct meaning committing the act of genocide? The speech is not harassment? This is unacceptable, Miss Magill. I'm going to give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn's code of conduct when it comes to bullying and harassment—yes or no?
Magill: It can be harrassment.
Stefanik had similar exchanges with Gay and Kornbluth. They all faced the same problem: Stefanik had made it clear that "calling for the genocide of Jews" was shorthand for celebrating Hamas-style "resistance," advocating "globalized intifada," aspiring to liberation of Palestine "from the river to the sea," or chanting "there is only one solution: intifada, revolution." So if Magill et al. agreed that "calling for the genocide of Jews" always qualifies as punishable harassment, they would be committed to penalizing students for speech that is clearly protected by their schools' official policies as well as the First Amendment.
The day after the hearing, Magill amended her response to Stefanik's questions. "In that moment, I was focused on our university's longstanding policies, aligned with the U.S. Constitution, which say that speech alone is not punishable," she said in a video that Penn posted on X. "I was not focused on, but should have been, the irrefutable fact that a call for genocide of Jewish people is a call for some of the most terrible violence human beings can perpetrate. It's evil, plain and simple."
That much was consistent with what Magill had said at the hearing. This part was not:
I want to be clear: A call for genocide of Jewish people is threatening, deeply so. It is intentionally meant to terrify a people who have been subjected to pogroms and hatred for centuries and were the victims of mass genocide in the Holocaust. In my view, it would be harassment or intimidation.
For decades, under multiple Penn presidents and consistent with most universities, Penn's policies have been guided by the Constitution and the law. In today's world, where we are seeing signs of hate proliferating across our campus and our world in a way not seen in years, these policies need to be clarified and evaluated. Penn must initiate a serious and careful look at our policies.
Magill's capitulation, which proved insufficient to save her job, did not bode well for freedom of expression at Penn. Her new understanding of what counts as "threatening" was clearly broader than the Supreme Court's definition of a "true threat," which involves "a serious expression of an intent to commit an act of unlawful violence" communicated to "a particular individual or group of individuals." Her revised take on "harassment or intimidation" also was broader than the Court's definition of proscribable incitement, which is speech that is both "directed to inciting or producing imminent lawless action" and "likely" to do so.
The controversy over Magill et al.'s handling of Stefanik's questions reflected and reinforced misconceptions about the First Amendment's limits. "There is no 'both sides-ism' and it isn't 'free speech,'" said Sen. John Fetterman (D–Pa.), one of many Democrats who joined Republicans in criticizing Magill and the two other university presidents. "It's simply hate speech. It was embarrassing for a venerable Pennsylvania university, and it should be reflexive for leaders to condemn antisemitism and stand up for the Jewish community or any community facing this kind of invective."
Contrary to what Fetterman seems to think, "hate speech" is indisputably protected by the First Amendment unless it falls into one of the narrow exceptions drawn by the Supreme Court. There is a distinction between "condemn[ing] antisemitism" and punishing people who promote it, which is the line that Magill tried to draw before giving up.
