U.S. campus antisemitism debate muddles nuances of free speech

The lowlight of the recent hearings in the United States House of Representatives on campus antisemitism came when Rep. Elise Stefanik asked the presidents of Harvard University, the Massachusetts Institute of Technology and the University of Pennsylvania (Penn) whether it would be bullying and harassment if someone on campus called for a genocide of Jews.

The presidents’ answers — that it depended on context — landed about as badly as they could have. Stefanik, a Trumpist Republican election denier, browbeat them and called it "unacceptable.” Since then, a chorus of other voices, including Josh Shapiro, the Democratic governor of Pennsylvania, has agreed.

The trouble is that, as it happens, the presidents were accurately describing their universities’ rules, which do depend on context. Even the Foundation for Individual Rights and Expression, which has criticized universities harshly over the years, says that "it’s hard to see” how the hypothetical sentence proposed by Stefanik could qualify as harassment.

As for the important and legitimate question of whether advocating for genocide is punishable under private universities’ existing free speech rules, that too turns out to be more complicated than a sound bite. The answer depends on how closely these rules track the First Amendment, which would protect such repugnant advocacy unless it was likely to cause imminent violence or was part of a pattern of workplace or campus harassment.

To understand why context actually does matter for harassment and bullying rules, you have to begin with the distinction between free speech and prohibited conduct, which goes back more than a century. Justice Oliver Wendell Holmes first posited that the free marketplace of ideas should be protected absent a clear and present danger posed by a given speech act in its particular context. The crucial importance of context mentioned by the university presidents is not some wishy-washy equivocation. It is the bedrock of free speech.

The core idea of First Amendment freedom is that the expression of ideas should not be punished because doing so would make it harder, not easier, to find the truth. That freedom extends to the most hateful ideas imaginable, including advocacy of racism, antisemitism and, yes, genocide. Holmes put it this way: "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate."

At the same time, Holmes understood perfectly well that speech can be deployed as part of a course of conduct that deserves to be outlawed. "The character of every act depends on the circumstances in which it is done,” he explained.

From this analysis, Holmes drew the famous rule that speech can be punished when words "are used in such circumstances and are of such a nature as to create a clear and present danger” that the law may regulate. "It is a question of proximity and degree,” he wrote. In other words, context is everything.

Holmes was dealing with words that incite violence. Applied to harassment, the First Amendment principle is essentially the same. Harvard defines harassment as "unwelcome and offensive conduct that is based on an individual or group’s protected status,” and considers factors like frequency, severity, physical threat and interference with the victim’s academic or work performance. It could be argued that simply advocating genocide of a group should count as harassment because it is so severe. But the ordinary legal (and colloquial) meaning of the word "conduct” does not extend to the pure expression of ideas — even vile ones.

As for bullying, Harvard defines it as "harmful interpersonal aggression by words or actions that humiliate, degrade, demean, intimidate, or threaten an individual or individuals.” Aggression aimed specifically at individuals is also different from the simple expression of ideas and also depends on context. A violent threat aimed at a person would be treated differently from a march advocating political violence.

That leaves the question of whether advocating genocide would be protected speech under university rules. Academic freedom in a private university is not identical to constitutional free speech.

Harvard’s free speech guidelines, for example, speak of "obligations of civility and respect for others that underlie rational discourse.” The First Amendment as interpreted by the Supreme Court, in contrast, does not consider civility or dignity to be relevant to free speech. Thus, some language that would count as free speech in the middle of Harvard Square (which belongs to the city of Cambridge) might not be protected when made in Harvard Yard (which belongs to the university). If it wanted to, Harvard could have a speech code banning advocacy of genocide.

In practice, however, Harvard’s academic freedom policy often appears to track First Amendment principles. It uses the words "free speech” repeatedly. It specifically protects "the right to press for action on matters of concern by any appropriate means,” including by "political association,” public meetings and demonstrations, and advocacy "by print, sign and voice.” And Harvard in fact does not have a code restricting speech. It has harassment and bullying rules.

It is thus entirely possible that under Harvard’s existing rules, advocacy of genocide in a march on campus would be protected. (President Claudine Gay’s statement the day after her testimony was ambiguous about that, saying only that those who made threats against Jewish students would be "held to account.”) Maybe the rules should be changed to single out advocacy of genocide.

Penn’s president has said it may be time to revise its free speech rules, which have long aligned with the American Constitution. But that would call for a serious, unhurried discussion about where to draw the line around what ideas may not be expressed on campus — because it would be important to clarify whether to also ban speech that arguably implies genocide, as opposed to advocating it outright. In practice, that would mean figuring out what to do about phrases like "From the river to the sea, Palestine must be free” or "Intifada now.”

Standing up for freedom of thought, even when it takes the form of speech we hate, is both principled and pragmatic. It is principled because without free speech, the marketplace of ideas would be decimated. It is pragmatic because in the future, we could each find ourselves advocating for an unpopular view.

What university presidents say under oath, and what the law and university rules require, will be recorded, remembered and invoked in future disputes about campus speech. When the argument is made — and it is already beginning to be made on campuses — that supporting Israel or Zionism is inherently genocidal against Palestinians, academic freedom and free speech will become important bases for protecting pro-Israel speech.

Without a line between speech and conduct, there can be no free expression. That line, Holmes taught, depends on context. That is not an equivocation: Our whole free speech tradition depends on it. Free speech nuance is something be proud of, not to condemn.