The Volokh Conspiracy
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More on Advocacy of Genocide
Let's focus concretely on proposed bans on advocacy of "genocide," at Stanford and beyond.
[1.] Stanford put out this statement Thursday:
In the context of the national discourse, Stanford unequivocally condemns calls for the genocide of Jews or any peoples. That statement would clearly violate Stanford's Fundamental Standard, the code of conduct for all students at the university.
The Fundamental Standard provides that violations can lead to expulsion:
Students at Stanford are expected to show both within and without the University such respect for order, morality, personal honor and the rights of others as is demanded of good citizens. Failure to do this will be sufficient cause for removal from the University.
At the same time, it adds,
The Fundamental Standard does not restrict speech that is otherwise protected, including speech that some may find objectionable.
I take it that Stanford must therefore be suggesting that calls for the genocide of any peoples are not "protected" "speech." And Stanford acknowledges that the definition of what is "protected" "speech" must rely on First Amendment rules, because a California statute (the so-called Leonard Law) so provides:
As state actors, public universities are held to the strictest of standards when restricting speech and in California, the Leonard Law holds private universities to the same standard. As a protected constitutional right, speech may not be subject to discipline unless that speech rises to a legal standard of being unprotected.
Stanford thus seems to view advocacy of genocide as falling within a First Amendment exception, which means that it's unprotected not just at California private universities but also against civil liability and criminal punishment.
[2.] Now what exactly is genocide? The term is often used loosely, but there is a definition in the U.N. Convention for the Prevention and Punishment of the Crime of Genocide:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
So let's say that there's a discussion in a class on military history about World War II. Someone says that the bombings of Hiroshima and Nagasaki were unjustified. Another student replies, "Just look at how fanatically the Japanese fought in Okinawa, and imagine how they might have fought for the core Japanese islands. The only way to get them to surrender was to show them that continuing the war would mean mass 'utter destruction' for civilians as well as for soldiers: 'If they do not now accept our terms they may expect a rain of ruin from the air, the like of which has never been seen on this earth.' Yes, we deliberately killed at least 120,000 civilians, and we were right to do so."
Under the U.N. definition quoted above, that would be advocacy of genocide: The student would be calling for killing members of a group with the specific intent to destroy or seriously harm a part (numbering in the hundreds of thousands) of that national group. True, your end might be just to get them to surrender, but your means would be deliberate destruction of substantial parts of the population. Bye-bye, student: You've just said something that is "sufficient cause for removal from the University." (OK, if you're lucky, you might just get suspended.)
Wait, you might say: Maybe advocacy of genocide is just advocating a specific future genocide, not just advocating for the propriety of some genocides by defending a past mass killing. Fine; say the question turns to modern nuclear weapons policy. Someone says that it would be wrong for Israel to respond to an Iranian bombing of an Israeli city by bombing an Iranian city. Another student replies, "Nonsense; to deter such an attack on them—or to deter follow-up attacks—the Israelis have to show Iranians that mass killing of Israeli civilians will cause mass killing of Iranian civilians." Out you go, student, you've advocated an act specifically intended to destroy Iranians in part.
This would of course sharply restrict the speech of students: If they're smart, they'd just shut up. But it would also sharply alter academic discussion (in this classroom example) or political discussion (if we shift this to debates in the quad). Here's how conversation on the subject might proceed:
Student A: If Iran bombs an Israeli city, that would be genocide, and a heinous crime. But Israel responding by bombing the Iranian city would also be genocide, and also heinous. Israel thus should absolutely not retaliate this way against nuclear attacks. Indeed, anyone who would back such retaliation against Israel would be violating our university's code of conduct.
Students B-Z either agree, or remain silent.
Conclusion some people loudly draw: Wonderful! We've reached consensus! Mutually Assured Destruction is an evil, criminal system, and Israelis would be evil criminals if they adopted it.
Conclusion other people quietly draw: Nonsense. We haven't had a real discussion at all.
And indeed, under Stanford's theory, this wouldn't just be the rule at Stanford. After all, Stanford acknowledges that it's bound to First Amendment rules (again, remember California's Leonard Law). Stanford's theory is that advocacy of genocide just isn't protected by the First Amendment—which means it could be made a crime outright, so that anyone in the U.S. can't take the pro-genocide views.
[3.] Now I expect some people might balk and say: What we really mean is the clearly unjustified deliberate destruction of part of a people. Hiroshima and Nagasaki were at least arguably justified, even if they were primarily aimed at causing civilian deaths. Likewise for a Cold War policy of retaliatory targeting of civilian centers, and likewise for such a policy on Israel's part (or for that matter Iran's). But the Holocaust was unjustified, and so are calls for destruction of Israel as a means to retake the land for the Palestinians. The definition of genocide must implicitly include such an element.
But why on earth should any of us have confidence in the Stanford administration's decision about what is justified—or, for that matter, in the decision of some California jury if the California Legislature follows Stanford's view that advocacy of genocide isn't "protected" "speech"?
Some others might respond: We really mean a policy of extermination for extermination's sake. But again that's not what the definition says. A "specific intent to destroy" can be present even when the destruction is in the service of a broader goal. One can specifically intend to destroy an army not because one just wants to kill the enemy, but because one wants to get the rest of the enemy's military forces to surrender.
[4.] Alternatively, others might say: No, what we really mean here is a policy of deliberate attempt at total extermination, or at least extermination as total as the advocates can achieve, as with the Holocaust. Yet that's not what the U.N. definition says: It quite expressly says that deliberate attempts to destroy "part" of the enemy population qualify. And the general understanding of the international definition of "genocide" does indeed seem to extend to the killing of even a relatively small subset of the group, so long as the killing is directed at the targeted group.
To be sure, the definition of "genocide" under U.S. federal law is somewhat more limited, though in an opaque way. The federal genocide statute is limited to actions taken with the specific intent to destroy in substantial part a national, ethnic, racial, or religious group, with "substantial part" defined as "part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part." What exactly this means is unclear: For instance, would arguing that some country should wage massive war on a breakaway Islamic State territory within that country, aimed at killing or seriously injuring ISIS soldiers and the extremist religious groups that actively support them, be a Stanford-expulsion-worthy call for genocide under this definition? And indeed at least one scholar has argued that the federal statute has actually been preempted by the U.S.'s later ratification of the U.N. Treaty (despite the reservations the U.S. attached to the ratification); the U.N. Treaty omits the "substantial" qualifier and offers no hints at the "destruction of the group as a viable entity" definition.
But in any event it is clear that modern American calls for punishing students who advocate genocide are often not limited to killing an entire group, or even a majority of the group. (And that's just limiting genocide to killing and other physical injury; recall how often people use genocide loosely, to refer to everything from "cultural genocide" to laws restricting gender-affirming care and the like.) Consider, for instance, Rep. Elise Stefanik's questioning of the university presidents, which seems to have led to the Stanford statement:
Congresswoman Stefanik: And you understand that the use of the term "intifada" in the context of the Israeli-Arab conflict is indeed a call for violent armed resistance against the State of Israel, including violence against civilians and the genocide of Jews. Are you aware of that?
Now I very much oppose terrorist attacks on Israeli civilians. But the intifada was not a viable attempt at the extermination of all or most Jews (or even of all or most Israeli Jews); it was an attempt to kill some Israeli Jews as a means of pressing Israel to allow the creation of a Palestinian state on the attackers' terms.
And the difference in killing Israeli Jews to coerce Israel and killing Japanese to coerce Japan stems from a judgment about who is in the right and who is in the wrong in the underlying conflict—about who started it, who is the unjustified aggressor, and who is justified in trying to get the aggressor to surrender. I think there is indeed a vast moral difference here, but that's my moral judgment. I don't see how First Amendment judgments or judgments under the California Leonard Law can properly turn on administrators', prosecutors', judges', and jurors' decisions about whether someone's speech is backing the bad guys or the good guys (good guys who would be doing awful things, even if justifiably).
[5.] And I'd say the same about universities outside California, such as Harvard, Penn, and MIT. It's true that they could adopt more restrictive rules on speech, without violating the law. They could indeed threaten to expel students who call for intifada. They could threaten to expel students who advocate a strategy of Mutual Assured Destruction, or even students who defend the Hiroshima and Nagasaki bombings.
They could threaten to expel students who defend the Israeli military action in Gaza (or students who argue that Israel should step up the attack to deliberately cause more pain to civilians). They could, for that matter, threaten to expel students who oppose transgender rights or abortion or race-based affirmative action or what have you. But I don't think they should: I don't think they really need more speech restrictions than, say, the University of Massachusetts or Penn State or other public universities that are governed by the First Amendment.
Finally, as I've noted before, of course some institution's defense of the free speech rights of those who defend the murder of Israelis rings hollow when those institutions have restricted the free speech rights of those who are seen as saying things that are offensive based on race, sexual orientation, gender identity, and so on. But I'd much rather that current events lead to a recognition of the importance of equally protecting controversial speech—even speech that some may view as genuinely evil, and that may indeed be evil—than to a judgment that we should equally restrict such speech.
