October 7: A Turning Point for Free Speech?

Restricting speech about the world's most pressing problems does not make them go away, nor does it settle any disputes.

Two hundred and forty-seven years ago last week, General George Washington rallied his beleaguered troops at Valley Forge with a public reading of Thomas Paine's The American Crisis, which reminded them, "These are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country." Where is Paine now when we need him?

Freedom of speech on American college campuses is now facing great challenges in the aftermath of the October 7 Hamas attacks on Israel and Israel's bombardment of Gaza. According to some, the outpouring of ugly, inexplicable, and vituperative speech unleashed by these events means that now is the time to abandon the concept of free speech at our universities. Apparently, to these "sunshine constitutional scholars," speech can only be free if it is polite and unchallenging.

Without a doubt, the past two and a half months have been a complete shitshow: clueless students excusing butchery and war crimes; feckless university presidents whose past records exhibit little concern for First Amendment limits now invoking the need to protect free expression; and opportunistic politicians who seemingly lack any understanding of constitutional constraints grandstanding their way through the misery and trying to impose plainly unconstitutional restrictions on student speech.

The campus reactions were kicked off with an October open letter from the Harvard Graduate Students for Palestine and the Palestine Solidarity Committee, which began: "We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence." That opening salvo presaged a tsunami of impassioned rhetoric from all sides of the conflict, with some pro-Palestinian groups praising the October 7 invaders as "martyrs" and chanting slogans like "from the river to the sea Palestine will be free" and "by any means necessary." Others, justifiably horrified at the hostage taking and the atrocities committed in the October attack, responded with harsh rhetoric of their own, sometimes blurring the distinction between condemning the terrorist organization Hamas and attacking all Palestinians. 

In this toxic atmosphere, clashes on campus and in the streets have brought to the surface many repulsive ideas, and some actions that go beyond the "uninhibited, robust, and wide-open" debate which "may well include vehement, caustic, and sometimes unpleasantly sharp attacks" that the First Amendment protects. For example, police arrested a Cornell University student for allegedly authoring online posts threatening Jewish students that included the claim he would "bring an assault rifle to campus and shoot all you pig jews." Some pro-Palestinian activists ripped down posters with pictures of hostages held by Hamas. In November, three young Palestinian men were shot and injured near the University of Vermont, an incident federal authorities are investigating as a possible hate crime.

Erwin Chemerinsky, dean of the University of California, Berkeley, Law School and a foremost constitutional scholar, wrote in the Los Angeles Times shortly after the war erupted, "I am a 70-year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks." Supporting Chemerinsky's sense of things, the Anti-Defamation League documented a 388 percent increase in U.S.-based antisemitic incidents during the first two weeks of the war. At the same time, the Council on American-Islamic Relations found a 216 percent increase in reports of anti-Muslim or anti-Arab bias over the last year.

Ever since Winston Churchill apocryphally said "never let a good crisis go to waste," politicians have clamored for ways to turn misfortune to their advantage. And just as nature abhors a vacuum, officeholders can't stand a missed opportunity—especially if there is a camera nearby. So it came as no surprise when the House Committee on Education and the Workforce convened a televised hearing on December 5 entitled, "Holding Campus Leaders Accountable and Confronting Antisemitism." The "gotcha" moment came when Rep. Elise Stefanik (R–N.Y.) asked the presidents of Harvard University, the Massachusetts Institute of Technology (MIT), and the University of Pennsylvania whether "calling for the genocide of Jews" violates each university's code of conduct, demanding that each provide "a yes or no answer." 

The presidents gave legally correct but tone-deaf responses that the answer was "context-dependent" and that such speech might be actionable if it crossed the line and became misconduct, such as targeted discriminatory harassment. All true, but not a satisfactory answer to a trick question.

Stefanik's query was not presented as an honest attempt to elicit thoughtful responses for how to address a difficult and complex problem, either as it was framed or in its demand for a yes or no answer. Nor was it a serious request for guidance on how to draw the line between angry or hateful speech that the First Amendment protects and the limited and carefully defined categories it does not, such as incitement, true threats, or discriminatory harassment. Rather, she asked whether the school policies permitted "calls for genocide" with the embedded assumption that student chants of "intifada" were the same thing.

The ploy had its intended effect. The three presidents all stumbled into the trap by accepting the unstated premise, thus opening the door to charges that they were insensitive to the demonstrable rise in antisemitism on campus and hypocritical for citing free speech principles when—let's face it—the institutions they lead had shown a notable lack of concern for the First Amendment in the enforcement of their speech codes.

As private schools, Harvard, Penn, and MIT are not bound to follow the First Amendment, but historically they have tried to pay some lip service to it. In practice, however, their records have been abysmal. Harvard and Penn scored at the bottom of the Foundation for Individual Rights and Expression's (FIRE) latest campus free speech report, and MIT, while in the middle of the pack among the schools surveyed, has a history of selective enforcement against speech it disfavors.

This mix of hypocrisy and insensitivity to the problem prompted an immediate backlash, including a House resolution calling for the ouster of all three presidents. The White House even weighed in with a statement. Within a couple of days, Penn President Liz Magill resigned (along with the chair of the school's board of trustees). "One down, two to go," Stefanik scoffed on X (formerly known as Twitter), although to date, Harvard President Claudine Gay and MIT President Sally Kornbluth have retained their positions.

But the reactions extended far beyond this amateurish episode of performative outrage. How could they not, with this much political gold to mine? In late October, Florida Republican Gov. Ron DeSantis directed the chancellor of the state university system to "deactivate" campus chapters of Students for Justice in Palestine based on the spurious assertion that their advocacy violated state and federal laws against providing material support for terrorists. The state paused its ban of the organization after a warning letter from FIRE (and, reportedly, after consulting its lawyers), but it continues to defend its actions in court.

Meanwhile, New York Democratic Gov. Kathy Hochul sent a letter warning all state university presidents that the state will bring "aggressive enforcement action" against institutions that fail to "address" those who call "for the genocide of any group of people." The governor's letter erroneously asserted that such speech necessarily violates the prohibition of discriminatory harassment prohibited under Title VI of the Civil Rights Act.

But such speech isn't against the law unless the conduct at issue is targeted toward particular students or groups and is "so severe, pervasive, and objectively offensive" that those on the receiving end are effectively denied equal access to an institution's resources and opportunities. Simply espousing hateful ideas doesn't meet this test. Nor does doing so amount to incitement or a "true threat," neither of which the First Amendment protects. It all depends on the context in which such speech was used.

And there it is—context—the word that cost Magill her job. The very mention of it launched Stefanik's theatrical tirade against nuance and her mic-drop conclusion that "this is the easiest question to answer 'yes,' Ms. Magill."

Of course, it is not easy to sit in the spotlight and endure a grilling from a politician in high dudgeon. And Magill might be forgiven for failing to spot the trick in Stefanik's line of questions. But then, one might not be expected to give a good answer to complicated First Amendment questions if you lack a history of defending free expression. And it didn't help that Magill stumbled through her answer with what appeared to be a self-satisfied smile.

What should she have said? Chemerinsky supplied a thoughtful suggestion in the Los Angeles Daily Journal: 

"I would have said that advocacy of genocide of Jews is repugnant, blatantly inconsistent with the values of my school, and must be immediately condemned by campus officials. I would have expressed that as a Jew, who had family members perish in the Holocaust, I am especially sensitive to such advocacy. But I also would have said that the First Amendment protects hate speech and allows all ideas and views to be expressed, including deeply offensive ones. Even advocacy of genocide is within the speech protected by the First Amendment. There, however, also is a point at which the advocacy is so pervasive that it becomes harassment or that it may be expressed in such a way that it is a true threat that is unprotected by the First Amendment."

To be fair, Magill and the other university presidents touched on similar themes, but not with Chemerinsky's clarity or consistency.

Some may take issue with the idea that university officials should take a position on such matters as being in tension with the University of Chicago's 1967 Kalven Report, which concluded the "university is the home and sponsor of critics; it is not itself the critic." But Chemerinsky's proposed answer represents one principled and nuanced way of addressing this emotionally charged subject.

One might charitably offer that if Magill had been able to take more time to consider her position, she might have come up with an answer that matched Chemerinsky's genuine empathy for the anguish that can be caused by hateful speech that also combined his deep understanding that First Amendment exceptions must be limited, narrowly defined, and consistently applied. But that's not what happened.

Given time to reconsider, Magill only made matters worse by posting a video to X in which she backed off from Penn's asserted commitment to First Amendment values. She said the school's speech code policies in the past "have been guided by the Constitution and the law," but that now, the university would "immediately" initiate "a serious and careful look at our policies" to change all that. Magill's capitulation was not enough to mollify her political critics, though, and she vacated her position within days of her Neville Chamberlain impersonation.

Unfortunately, Magill was not alone in concluding it was time to give up on the First Amendment. Writing in The Washington Post a few days after Magill's resignation, Claire Finkelstein, chair of Penn Law School's committee on academic freedom, and member of the school's Open Expression Committee, complained that "the value of free speech has been elevated to a near-sacred level on university campuses." But enough of all that.

Finkelstein called Magill's initial halting defense of free expression "profoundly wrong," and, noting that Penn is not bound by the First Amendment, added, "In my experience, Penn has never actually followed the First Amendment, even to a close approximation." This—sadly—is true, as FIRE's surveys have shown. But it is a good thing, according to Finkelstein, who argues the university should double down on its abandonment of constitutional principles.

She suggested it was time for university presidents "to rethink the role that open expression and academic freedom play in the educational mission of their institutions." Why? Because too much free speech on campus "emphasizes skills that pose the greatest challenge to our democracy." Accordingly, she proposed a crackdown not just on calls for genocide, but also on proxy statements and the "ability to shout intemperate slogans" that might foster a hostile environment.

Even more thoughtful commentators, like The Washington Post's Ruth Marcus, have suggested that free speech may be a good thing and all, but that "the full contours of the First Amendment" should not apply "in the university setting." Apparently, the times are just too tough or university students too fragile to endure the rigors that come with freedom of speech.

But just the opposite is true. The principles some may be willing to toss aside or dilute were not forged in tranquil times. First Amendment protections against the "heckler's veto" emerged not from some mannered theoretical discussion of political theory but from a case involving a near riot that erupted in response to a firebrand priest's intemperate condemnation of communists and Zionist Jews, among other targets. Police struggled to keep a crowd of 1,500 demonstrators at bay as they surged toward the auditorium trying to break in, hurling bricks and other objects at the windows.

In the aftermath, Father Arthur Terminiello was prosecuted for disturbing the peace for igniting the hostile reaction, but the Supreme Court reversed his conviction. It was not enough that his words "invited dispute," the Court reasoned, because "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Such protections are based on the understanding that "speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea."

The university setting is precisely the place where these lessons need to be learned and reinforced. As the Supreme Court stressed over six decades ago, "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." These principles emerged from the ideological struggles of the Joseph McCarthy era, the demands by students to discuss social issues in the Berkeley free speech movement, the campus demonstrations for civil rights and against the Vietnam War in the 1960s and '70s, and numerous political disputes since then. As the Kalven Report concluded during the campus turmoil of the 1960s, "A good university, like Socrates, will be upsetting."

There is no need to infantilize students by telling them they are simply too brittle to fully participate in the heated debates going on in the world around them. Instead, we need clear leadership from university presidents and others that stresses our commitment to free expression. This commitment must remain strong especially in turbulent times, and this includes developing a resilience against what Justice Oliver Wendell Holmes Jr. described in 1919 as "opinions that we loathe and believe to be fraught with death."  And we also need leaders who understand the difference between protected but distasteful speech and violence, vandalism, and attempts to block or shut down opposition speakers.

The situation will not improve by adopting some half-assed version of the First Amendment to shield university students from offense. Far from being "the greatest challenge to our democracy," as Finkelstein and others suggest, understanding and experiencing the rigors of uninhibited free speech is necessary to the functioning of our democracy. Or, as Washington Post columnist Jason Willick put it, "The academy's decline will continue until it can produce leaders with the strength to break the ideological frenzy that has taken hold. That will mean rejecting identity politics, cracking down on mobs that disrupt and vandalize, but defending protected speech to the hilt." 

None of this is easy. These are indeed times that try men's and women's souls. But as Justice Robert Jackson wrote in another time of crisis, "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." 

Restricting speech about the world's most pressing problems does not make them go away, nor does it settle any disputes. We defend First Amendment principles not because the Supreme Court said so in some dusty old casebook, but because experience has taught us that the price of jettisoning them is higher.