Freedom of speech is essential if sound ideas are to be promoted and flourish and if terrible ideas are to be exposed and wither. It can be a difficult freedom to defend. At a Congressional hearing last Tuesday, following the terrible events of October 7 in Israel, three university presidents got themselves tangled up in the First Amendment’s complexities and ended up being ridiculed, only for the wrong reason.
If I were a university president and had been put on the spot with the question, “Does calling for the genocide of Jews violate [your university’s] rules or code of conduct?” I would have faltered. When Representative Elise Stefanik posed it at last Tuesday’s Congressional hearing, the answer given by the then University of Pennsylvania President Elizabeth Magill (“it is a context-dependent decision”) led directly to her resignation.
Why, like this and the other two testifying university presidents, would I have hesitated? To call for the genocide of any group is appalling. To do so against Jews might be still more cruel because Jews were subjected to an attempted genocide within the memory of people still alive. If any among us had yielded to a kneejerk reaction to the question, we would have said, “Of course!” To Stefanik, along with numerous donors to university endowments, politicians and even ostensibly objective journalists, this answer is the only correct one: We must silence anyone who advocates for the genocide of the Jews.
But what good would suppression do? Imagine a debate in which any argument may be raised except for one. That one argument would then loom as the single most important question—the proverbial elephant in the room whose name no one dares speak.
It’s astonishing how skewed the coverage of Tuesday’s hearing has been. No respect has been shown for the insistence by all three university presidents that there isn’t a simple answer. Even the New York Times, which typically takes care to imply no position in its journalism, has been using judgmental language. For example, in its December 12 article about Penn’s board infighting, Magill’s testimony is characterized as “her disastrous appearance,” as if she were to blame for the hearing’s travesty.
We think of the First Amendment’s right to free speech as the opportunity to speak our minds. It is. But just as important, it’s a profoundly wise principle that ensures corrupt and dangerous ideas don’t fester in the dark. If we punished people who openly espouse genocide of Jews, we’d be sending a terrible idea underground. We rightly condemn the words, but by refraining from punishing the speaker, we keep its exponents out in the open where they can be watched.
Technically, the First Amendment is a constraint only on government, not a private university like those three at last Tuesday’s hearing. However, even private institutions claim to adhere to its tenets, and despite disciplinary codes that might differ in detail, academic institutions act as if the Amendment does apply to them.
The Supreme Court has carved out a few exceptions to our right to free speech, among them “fighting words” and “incitement.” However, as I understand these two exceptions, they require an intention to act. Hateful speech alone isn’t sufficient to warrant intervention. It also makes a difference if the speech is directed to a broad audience rather than targeted at one individual. When speaking to many, demanding “genocide of the Jews” doesn’t necessarily mean the speaker actually intends to carry out anything like it. The appeal is upsetting, but it’s likely to be an angry, irrational cry of protest, the way people unhappy with our legal system might quote Shakespeare out of context by shouting, “Kill all the lawyers.”
The New York Times reports that two of the university professors at the hearing, including Penn’s president, were advised in advance by the same law firm. Without those no-doubt expensive consultations, maybe one or more of the presidents would have yielded to that first impulse and condemned the whole idea of Jewish genocide. From a PR point of view, it would have been better for them. But chances are that even without legal counsel, they still would have been cautious. Penn’s now former president, Elizabeth Magill, is a constitutional scholar and undoubtedly grounded in the First Amendment’s fundamental importance to the America as we now know it.
Was it those law firm lawyers who came up with the phrase, “context-dependent”? Magill should have recognized that when it comes to academic policyspeak, the word “context” has been used so often that it’s become a cliché, void of meaning, a substitute for thought. Isn’t it time that leaders in the academic world, as well as the corporate and not-for-profit worlds, reduce their dependency on legal counsel when taking public positions and, instead, return to seeking advice from trusted friends and colleagues, thought-provoking texts and common sense? Legal counsel is about protection, not advancement.
“Does calling for the genocide of Jews violate your university’s rules or code of conduct?”
I doubt I would have worked out a satisfactory answer in the moment and the glare of television lights, but here’s how I might have thought about it afterwards: The idea is abhorrent, but we would be making a mistake to suppress it. The most effective response is the outpouring of repudiation that invariably meets such atrocious statements. The best way to fight genocide advocates is to let them talk their way into formulating a violent plan, if they get that far, at which point they would be committing a punishable offense. Their being so vocal makes it more likely that a real threat would become more obvious more quickly, and hence more readily preventable, than if their words alone were punished. It’s how the Supreme Court reasoned in 1977 when it declined to bar the Nazi march on Skokie, Illinois.
If the inability of the three university presidents to articulate a solid First Amendment response were the only failure in the answers they gave, I’d feel sympathy for the impossible position in which Stefanik put them. But their answers revealed a level of hypocrisy that causes ordinary people to resent those of us who have benefited from an education at America’s finest institutions.
Yes, although secondary to the reporting, several observers did note the hypocrisy. The New York Times’ Bret Stephens reports a telling example. Earlier this fall, Penn’s now former president approved a program of Palestinian writers and artists even though she condemned anti-Semitic statements that some attendees made. But as Congressman Donald Norcross suggested in his question to Magill, she would never have authorized a conference of racist writers. Is racism any worse than anti-Semitism?
It wasn’t the only instance of hypocrisy. In a Wall Street Journal article, Stefanik writes that last year Harvard “[w]arned all undergraduate students that ‘cisheterosexism,’ ‘fatphobia’ and ‘using the wrong pronouns’ qualified as ‘abuse’ and perpetuated ‘violence’ on campus.” I don’t trust Stefanik, but her claim is consistent with my understanding of widespread institutional positions. Academia seems to take firmer and harsher stands against gender-related, body-type and pronoun transgressions than the three university presidents were willing to take publicly against anti-Semitism.
When I recently said “political correctness” in an exchange with an acquaintance who is active in a college’s alumni association, he told me no one says that anymore. It was one of those times when I was made to feel out of touch with what is going on around me. But on reflection, his claim is a sign that it’s the academic world that is out of touch with its old nemesis, the “real world.” Political correctness abounds. The difference may be that once seen as social pressure, bad enough but resistible, PC has metastasized into regulation and enforcement.
That officials care greatly about resisting racism, sexism, insensitivity to gender-ambivalent people and prejudice in general is evidence that our society has come closer to the ideal of equality that surely most of us desire. But when the pendulum keeps swinging in that direction so that we overprotect groups with finicky rules and excessive attention, mainstream groups are likely to rebel. Along with identity politics, people’s groundswell of resentment against being told what to think is what most undermines small-d democrats. This hypocrisy may well explain the disillusionment that sends people into Donald Trump’s autocratic camp.
I recall from my college years the demonstrations and dorm arguments over capitalism, Cuba, Vietnam, race and other divisive issues. People made extreme statements in threatening voices. It was disturbing. I was, and remain, a sometimes reluctant advocate of the First Amendment. Freedom of speech comes with costs at many levels. But the alternatives would take us backwards to times and places where a casual word overheard by a neighbor could get you imprisoned, tortured and killed. Moreover, the way to win opponents over to your point of view isn’t by telling them to shut up. It’s by trying to convince them that your approach will do good while theirs does harm.
Last Tuesday, Representative Stefanik set a trap for the three university presidents by requiring them to choose between renouncing the First Amendment and, by qualifying their opposition to anti-Semitism, enduring shaming by thirty-second video clips. After Penn’s President Magill resigned, Stefanik gloated, “One down. Two to go.” It was a gotcha moment reminiscent of Senator Joe McCarthy’s sensationalist grilling of deer-caught-in-the-headlights witnesses.
As an inquisition on anti-Semitism, Stefanik’s performance was as politically effective as it was unjust. But as an exposure of hypocrisy, the hearing showed that academia has become so caught up in identifying and protecting different categories of people at the possible expense of other categories of people that it’s no longer possible for university administrators to be straightforward in their public statements. Perhaps now universities will reassess their politically correct regulation of a host of difficult and rightly controversial areas. I wish I were optimistic.