FIRE's Statement on the House Hearings on Anti-Semitism

"Double standards are frustrating, but we should address them by demanding free speech be protected consistently — not by expanding the calls for censorship."

From FIRE yesterday:

[Tuesday], the U.S. House Committee on Education & the Workforce held a hearing on "Holding Campus Leaders Accountable and Confronting Antisemitism." For hours, members of Congress grilled the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology on their responses to anti-Semitism on campus following Hamas' October 7 attack on Israel — and many observers noted the hypocrisy of leaders of institutions with checkered records on free expression suddenly claiming their institutional commitments to free speech prevented them from cracking down on anti-Semitic speech.

Of course, one can understand the frustration of critics who rightly observe how quickly college administrators — including those at Harvard, Penn, and MIT — will reach for speech codes when certain disfavored views are expressed, yet don the cloak of free speech when they are more sympathetic to the speech at issue. Speech codes depend for their very existence on the exercise of double standards, as FIRE co-founder Alan Charles Kors has said.

But the solution to this moral cowardice is not to expand the use of vague and overbroad harassment codes so that they apply in more cases. Rather administrators should eliminate these codes and defend free speech in all cases. No hypocrisy. No double standards.

FIRE has battled vague, broad college harassment policies since our founding in 1999. We have defeated hundreds of unconstitutional, illiberal harassment policies at campuses nationwide — and we target these particular speech codes because harassment policies have long been the tool of choice for censorial college administrators. FIRE's case archives prove that harassment charges are regularly used to censor all kinds of speech, from punishing a student group at Long Island University critical of trans issues to investigating pro-choice students at American University.

Of course, Harvard, Penn, and MIT all have harassment policies that are ripe for abuse. So — given their testimony yesterday and apparent newfound commitment to free speech — we invite these institutions to reform their policies once and for all. Students have both a right to free expression and a right to learn free of discriminatory harassment. Institutions like Harvard, Penn, and MIT have a legal and moral obligation to deliver both.

Fortunately, we have legal guidelines for what constitutes unprotected discriminatory harassment. We don't need to guess. The Supreme Court laid out the standard for peer-on-peer harassment in 1999: The conduct in question must be targeted, unwelcome, and "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." This is a high, but not insurmountable, bar. Some individuals on campus may well be engaging in behavior that qualifies as harassment.

The bottom line is that harassment is a pattern of targeted behavior. For example, it's hard to see how the single utterance Rep. Elise Stefanik asked about during the hearing — no matter how offensive — would qualify given this pervasiveness requirement.

No student may be expelled — or otherwise punished — for expression that is protected by the First Amendment on a public college campus, or by similarly stringent institutional promises on a private college campus. But when students engage in conduct that isn't protected under the First Amendment — for example, by disrupting events, blocking egress in and out of buildings, engaging in violence, or issuing true threats to others — those actions are not protected by the First Amendment. Institutions must take all reasonable measures to protect students from unprotected conduct that stifles free speech or credibly threatens the physical safety of others.

And as frustrating as it is to hear the college presidents' appeals to "context" in yesterday's hearing, particularly when it doesn't seem to matter to them when other speech is at issue, the truth is that context does matter. It always matters when assessing whether speech crosses the line into an unprotected category such as harassment, true threats, or incitement. It's always a fact-intensive analysis.

If a professor tweets, "All I want for Christmas is white genocide" — as a Drexel professor did in 2018 — does it matter that the tweet was satirical, written by a white guy, and not directed at anyone in particular? Of course it does.

If a professor shares "Mein Kampf" with students, does it matter that he does so as part of a class about the origins of World War II? Of course it does.

Even a narrow ban on calls for genocide — a term with a contested meaning — would inevitably be enforced in an arbitrary or viewpoint-discriminatory manner. Some say "from the river to the sea" is a call for genocide. Others say Israel's invasion of Gaza is a genocide. What about a professor saying he hopes members of Hamas die? It's too easy to imagine such a sentiment becoming grounds for punishment. In fact, we don't have to.

Absent more, these views are protected political expression. To best prepare tomorrow's leaders, and to ensure their promises of free expression are meaningful, college presidents must remember as much.

Nuance might be the first casualty of televised congressional hearings. Yesterday's spectacle obscured a simple truth: Those in power will ignore context and the relevant legal standard and censor speech most of us agree should be protected if they (1) don't like the speech in question and (2) have a speech code on the books that is ripe for abuse.

FIRE advisory council member and former ACLU Executive Director Ira Glasser tells the story of how, in the 1970s, a group of Zionist students in England supported a National Union of Students ban on racist speech. It was a mistake. A few years later, the union determined Zionism was a form of racism and banned Zionist speakers on campus. Speech codes have a tendency to boomerang.

The many Americans shocked and angered by anti-Semitic speech should remember censorship is ultimately unhelpful — indeed, it's harmful. As FIRE President and CEO Greg Lukianoff has written, censorship doesn't change a person's mind — it only prevents us from knowing what's in their mind. If anti-Semitism is to be addressed, isn't it important to know who the anti-Semites are? FIRE co-founder Harvey Silverglate often says he wants to know who the Nazi in the room is, if only to know he shouldn't turn his back to them.

In light of the sudden and convenient discovery of free speech scruples by the college presidents at yesterday's hearing, we should hold the presidents to these scruples, and we should not lose sight of the bigger picture. Double standards are frustrating, but we should address them by demanding free speech be protected consistently — not by expanding the calls for censorship.

I generally agree, for reasons I've discussed before (e.g., here).

Note that I've consulted for FIRE before, but I haven't been involved with this case.