Opinion | Campus speech codes should be abolished

The cautious, legal answers that three college presidents gave last week during a hearing before a House committee investigating the state of anti-Semitism on America’s college campuses have caused widespread revulsion across the partisan divide. When none of the presidents — representing Harvard, the Massachusetts Institute of Technology and the University of Pennsylvania — could provide a clear answer to Rep. Elise Stefanik, Republican of New York, asking whether “calling for genocide of the Jews” amounted to on “bullying or intimidation,” many prominent Democrats joined Republicans in denouncing the testimony.

“I’m not a fan” of Ms. Stefanik, the Harvard Laurence Tribe law professor said on social media, “but I’m here with her.” Then one of Donald Trump’s most fervent opponents one of him cheers most loyal defendersyou know some kind of vanishingly rare political singularity has been reached.

Critics are right to point out the hypocrisy of university leaders who have belatedly come to embrace a version of free speech absolutism that tolerates calls for Jewish genocide after years of punishing far less offensive speech that is considered offensive to others minority groups. For example, in 2021, MIT withdrew a speaking invitation from a geophysicist who had criticized affirmative action. Harvard and Penn to appear right at the bottom of the Foundation for Individual Rights and Expression’s annual free speech rankings (where I am a senior fellow).

But two wrongs don’t make a right. If the problem with campus speech codes is the selectivity with which universities punish different forms of bigotry, the solution does not lie in expanding the university’s power to punish speech. It involves the complete abolition of speech codes.

Universities play a crucial role in promoting a culture of free and open debate, and the presidents were right to distinguish between speech and behavior. Threats against individual students are inconsistent with a university’s goal of fostering a productive educational environment, not to mention the law. Students can and should face disciplinary action and even expulsion for certain behavior: acts of violence, ‘real threats’ (certain by the Supreme Court as “serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals”) and discriminatory harassment (which the court outlines as conduct “so severe, pervasive, and objectively offensive that it effectively blocks the victim’s access to an educational opportunity or benefit”). Students can and should also be punished for disrupting classes, occupying buildings or wielding the so-called heckler’s veto, where they prevent a speaker from being heard.

But students should not be punished for speech protected by the First Amendment — even for something as odious as a call for genocide.

The central problem with restrictions on odious speech is that it is often debatable, for example amounting to a call for genocide, and university administrators are poorly positioned to judge such debates. When Ms. Stefanik asked university presidents whether “calling for genocide of the Jews” violated their codes of conduct, she referred to three specific sentences who pro-Palestinian demonstrators chant during their rallies: ‘Globalize the intifada’, “There is only one solution: the Intifada Revolution” and “From the River to the Sea” (short for “From the River to the Sea, Palestine will be free”). While I believe that all three advocate violence against Jews – and that the latter, in calling for an area between the Jordan and the Mediterranean to be removed from Israel, tacitly endorses genocide – there are those who sincerely believe that this plea for peaceful coexistence.

Furthermore, many people who utter these phrases are simply ignorant. There is proof that an alarmingly large number of students who now say “from the river to the sea” do not seem to know what the phrase means – or even which river and sea they are referring to. Asking schools to determine whether embracing such statements constitutes a violation of university policy places administrators in the untenable position of literary commissioners, judging the “true” intent of these and a variety of other statements.

Regardless of our politics, we should all be wary of giving educational institutions even more power to enforce rules that bar hate speech (a concept that has no standing in American jurisprudence), because we all risk coming into contact with it to come. Many pro-Israel students and activists enjoyed Ms. Stefanik’s criticism of university presidents, but what can stop a ban on the threat of “genocide” from silencing them? Accusations that Israel is committing a “genocide” against the Palestinians in Gaza have been made repeatedly over the past two months. Never mind that such claims are completely baseless. If abstract expressions of support for “genocide” were banned on college campuses, any student or invited speaker who supported Israel’s campaign to destroy Hamas could be accused of enabling “genocide” against Palestinians and subject to punishment in the whim of some university bureaucrat.

Professor John Strauss of the University of Southern California was recently accused of racism and xenophobia after he told a gathering of pro-Palestinian student protesters: “Hamas are murderers. That’s all they are. Everyone should be killed, and I hope they all do.” After a deceptively edited video containing only the last sentence of his comments went viral, a petition circulated demanding that Mr. Strauss would be fired and the university limited him to teaching remotely for the remainder of the semester. (He was eventually allowed to return to campus, and the university maintains that the restrictions were not punitive.)

Americans are rightly shocked by the open expression of anti-Semitism at elite universities in the aftermath of October 7. As disturbing as this revelation has been, we can only face the problem if we have the ability to recognize it. By its very nature, censorship obscures; How can we deal with the radicalization of the professoriate and the political indoctrination of their accusations if we cannot hear what they have to say?

“The university is the home and sponsor of critics; it is not itself the critic,” said the Kalven Report, a landmark statement on the value of academic institutional neutrality, issued by the University of Chicago in 1967. The report noted that a constructive university experience would necessarily be “troubling.”

The test of a liberal society is how we deal with that unrest, not how we avoid it.

James Kirchick (@jkirchick) is the author of “Secret City: The Hidden History of Gay Washington,” a contributing writer at Tablet Magazine and a senior fellow at the Foundation for Individual Rights and Expression.

Source photos by Andyworks and MicroStockHub/Getty Images

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