The Volokh Conspiracy
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"This Will Not End Well": FIRE on Penn President's Backtracking on Free Speech
"Conservatives like Rep. Elise Stefanik should ask themselves: Do you honestly believe this [proposed new rule against "calls for genocide"] won't be weaponized to ban an Israeli cabinet official from speaking at Penn? An Israeli Defense Force soldier?"
Another excellent statement by FIRE, yesterday:
[Wednesday], University of Pennsylvania President Liz Magill signaled that one of our nation's most prestigious institutions is willing to abandon its commitment to freedom of expression.
"For decades, under multiple Penn presidents and consistent with most universities, Penn's policies have been guided by the Constitution and the law," explained Magill in a video posted to X. But now, she continued, the university "must initiate a serious and careful look at our policies," a process to start "immediately."
This is a deeply troubling, profoundly counterproductive response to yesterday's congressional hearing on "Holding Campus Leaders Accountable and Confronting Antisemitism." Were Penn to retreat from the robust protection of expressive rights, university administrators would make inevitably political decisions about who may speak and what may be said on campus. Such a result would undoubtedly compromise the knowledge-generating process free expression enables and for which universities exist.
To be clear: Universities will not enforce a rule against "calls for genocide" in the way elected officials calling for President Magill's resignation think they will. Dissenting and unpopular speech — whether pro-Israeli or pro-Palestinian, conservative or liberal — will be silenced.
Conservatives like Rep. Elise Stefanik should ask themselves: Do you honestly believe this rule won't be weaponized to ban an Israeli cabinet official from speaking at Penn? An Israeli Defense Force soldier?
The power to censor always invites abuse and never stays cabined.
FIRE was founded in the wake of the infamous 1993 "Water Buffalo" incident at Penn. In that case, Israeli-born Jewish student Eden Jacobowitz was charged with harassment for shouting "Shut up, you water buffalo" at a group of rowdy sorority students outside his dorm room window. The sorority students were black, and the argument was that "water buffalo" was a racial epithet.
But it was not. Jacobowitz, who speaks Hebrew, explained that water buffalo is a rough English translation of "behema," a Hebrew slang term for a loud, rowdy person. The story captured headlines, and Penn was widely condemned for its persecution of Jacobowitz.
FIRE co-founder Alan Charles Kors, a history professor at Penn, helped advise Jacobowitz. The charges were eventually dropped and the story would go on to serve as the opening chapter of "The Shadow University: The Betrayal Of Liberty On America's Campuses" — the book that launched FIRE.
Over the years, Kors and FIRE helped Penn get past the water buffalo debacle. The school reformed all of its speech codes and was one of the first universities to earn FIRE's highest, "green light" rating for speech-protective policies.
But in recent years, Penn has backtracked. It's no longer a green light school. It adopted new harassment policies that are ripe for abuse. And what free speech and academic freedom protections remain, it doesn't consistently follow.
Now President Magill suggests an institutional willingness to abandon free expression altogether.
This will not end well. Vesting administrators like Magill with more power to police speech will result in more Jacobowitzes. The intended targets for these codes will not be the actual casualties — and Penn students, faculty, alumni, and donors will come to regret the day they ever entrusted campus bureaucrats with the power to police speech on campus.
