On Tuesday, the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology testified at the hearing Congressional hearing On “Holding Campus Leaders Accountable and Confronting Anti-Semitism.”
At the hearing, Rep. Elise Stefanik (RN.Y.) Requested University of Pennsylvania President Liz Magill: “Does calling for the genocide of Jews violate the Penn Code or the Code of Conduct, yes or no?” Stefanik was referring, among other things, to phrases such as “There is only one solution: intifada revolution,” which refers to mass acts of violence against Jews in Israel.
Magill’s response — that the answer “depends on the context” — led to rare bipartisan unity and a chorus of condemnation. In fact, Magill led to it back down later, Then to invite Re-evaluating university policy To restrict further speech, and finally resign.
Anti-Semitism on campus is a real problem, and in this fraught moment, many Jewish students are understandably fearful. But if freedom of expression is to survive on American campuses — and for the vitality of our nation, it must — Magill’s original answer was correct. Context Do Theme.
Categorical exceptions to the First Amendment are few, narrow, and carefully defined by precedent. While the University of Pennsylvania is a private university not bound by the First Amendment, its policies hold the school to First Amendment standards.
Under the First Amendment, speech intended to cause imminent unlawful conduct is not protected.”incitement“. Discriminatory harassment Targeting specific students is not protected. Real threats – Serious expressions of intent to engage in unlawful acts of violence against a specific person or group of people – are not protected. He promised to “bring an assault rifle to campus and shoot all you Jewish pigs,” as a student at Cornell University It allegedly happened in October, It is a real threat that is punishable.
Whether other data is constitutionally protected depends on the context. For example, calling for an “uprising” at a peaceful march is generally a protected political expression. Even urging attacks on Israeli civilians, and generally advocating violence elsewhere at an unspecified time against a broadly defined target, Protected speech remains.
But in a different context, chanting “intifada” might pose a real threat — for example, if a speaker directed that statement at a specific American-Israeli student while moving menacingly toward that student during a protest that turned violent. Combined with targeted and unwelcome behavior, this may constitute punishable discriminatory harassment.
The First Amendment does not include a “advocacy of genocide” exception, nor do the free speech promises to students that many private universities properly make. And for good reason: students should be free to debate what is appropriate to do in war, and what wars are just.
Indeed, any new rule prohibiting “calling for genocide” could easily be used against pro-Israel speakers. Many claim that Israel has the right to kill as many Hamas fighters as possible, and if Hamas hides behind civilians, then Israel has the right to kill civilians to reach Hamas.
But others say that the State of Israel was wrongly created on Palestinian land, and that Israeli Jews need to be expelled from it — through mass transfer if possible, or through fighting. There are those who believe that the Hamas attacks were in self-defense, and therefore the Israeli response is genocide.
Now, one might think that these positions are morally quite different. But whatever anyone’s moral views, students should be free to discuss this issue by arguing different positions, even when such calls may be deeply offensive to some, many, or most. None of us should want campus bureaucrats to inevitably make political decisions about what truly It constitutes genocide.
Focusing less on the “genocide” label, other discussions about wars that result in the mass killing of civilians and whether such outcomes are justified under certain circumstances can face the same problem. Imagine a student who claims that Israel must respond to an Iranian nuclear attack by dropping a nuclear bomb on Tehran, a city of 12 million people, in order to prove that killing Israelis will kill Iranians.
Such an argument seeks to justify the killing of countless civilians by relying on a highly controversial moral claim: that killing may be justified if it deters other killings. But a broad rule against “calling for mass murder” would make this discussion punitive. In effect, this means that students could be punished for using the same argument to defend the American bombings of Hiroshima and Nagasaki.
Universities must keep students safe from real threats and punish targeted harassment, violence, vandalism, and other unprotected behavior. But to truly deliver on the promise of higher education, university leaders — and Penn’s next president — must do it all without abandoning free speech standards.
Eugene Volokh is a professor at the UCLA School of Law and a visiting fellow at the Hoover Institution at Stanford. Will Creeley is Legal Director of the Foundation for Individual Rights and Expression.
The recent resignation of Liz Magill, University of Pennsylvania’s vice provost for University Life, has sparked a heated debate about the policing of campus speech by congressional authorities. Many are pointing to Magill’s resignation as a demonstration of the growing problem of government interference in academic and intellectual freedom on college campuses. This controversy has brought to the forefront the ongoing tension between the constitutional rights of free speech and the regulation of campus discourse by external governing bodies. It has raised important questions about the role of Congress in shaping the climate of free expression within academic institutions and the potential impact on the exchange of ideas and diversity of thought.