Free Speech, Harassment and Hypocrisy: What the University Presidents Got Right and Wrong

Photo by Occupy Harvard, Public domain, via Wikimedia Commons

In 1976, the village of Skokie, Illinois received a letter from a political group proclaiming their intention to demonstrate in their town. Finding the group’s message offensive, the town passed a series of ordinances designed to make the demonstration legally impossible. The organization sued, claiming their First Amendment Rights were being violated. That group was the Illinois chapter of the National Socialist Part of America, aka, the Illinois Nazis.

NSPA v. Village of Skokie is a rather famous First Amendment case. David Goldberger, a Jew working for the ACLU, argued the case on behalf of the Nazis. However, the Supreme Court did not actually rule that the Nazis had a right to march. What they ruled was that the Illinois Supreme Court could not sit on the case. Because the case involved a fundamental First Amendment right, they had to either hold an immediate hearing or issue a stay in the Nazis’ favor. Ultimately, the State Supreme Court and the District Courts ruled that the Nazi march was within the bounds of free speech, even in a heavily Jewish village filled with Holocaust survivors. SCOTUS then declined to hear the appeal, letting the precedent stand. This set of rulings set the precedent, still standing, that even Nazis have the right to free speech.

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I thought of the Skokie case immediately after Elise Stefanik’s now famous confrontation with the Presidents of Harvard, Penn and MIT. Stefanik pressed the presidents to give a clear answer on whether or not calling for the genocide of Jews violated their universities’ policies on harassment and abuse. The presidents somewhat stumbled over the question but seemed to settle on the idea that calling for this in the abstract was not a violation of their policy but targeting such speech specifically at Jews would be. The ensuing backlash was severe and the President of Penn has already resigned in the wake of this. There seems to be a broad consensus that the institutions were saying they were OK with anti-semitism and were finally called out on it.

But perhaps you will forgive me if I don’t immediately leap into Representative Stefanik’s arms and cry out, “My hero!”¹

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I have some experience with antisemitism. It has ranged from minor but irritating (girls who wouldn’t date me, although that may have been a convenient excuse) to downright scary (a cross being burned on the lawn of my synagogue). For the most part, my religion has not been a problem in my life, certainly not the way it was for my father’s generation, where higher education institutions like Harvard had quotas limiting the number of Jews they would admit, or my grandfather’s generation, who experienced the lynching of Leo Frank.

However, the past few years and the past two months in particular have been a bit alarming. My state GOP nominated a candidate with ties to Nazi haven Gab and its conspiracy theorist CEO. The likely Republican nominee for President hosted Holocaust denier Nick Fuentes and anti-semitism spewing Kanye West at his Florida resort. Just up the road, 11 people were murdered at the Tree of Life synagogue by a replacement-theory conspiracy nut.

But we have also now seen a turn toward anti-semitism by the Far Left. Denial over the horrific events of October 7. Ripping down of posters of kidnapping victims. Harassment of students for being Jewish. Chants of “From the River to the Sea”, which has genocidal implications.² I understand protesting against Israel’s current actions in Palestine. But a lot of this started not when Israel went into Gaza but after Hamas’ attack before the bodies were even cold. That tells me there is a lot more going on here than just sympathy for the Palestinians.³

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So why am I not cheering for Stefanik and calling for universities to be burned down?

Because in their bumbling half-baked way, the university presidents were right. At least in the abstract.

Ken White breaks down how First Amendment law falls out on this subject:

The First Amendment protects advocacy of the moral, historical, and practical correctness of monstrous, immoral, and illegal things, unless they are:

• Conveyed as a true threat — that is a threat intended to be taken, and likely to be taken by a reasonable observer, as a sincere expression of intent to do harm to someone;
• Conveyed as incitement — that is, intended and likely to cause imminent lawless action;
• Part of a pattern of harassment — that is, directed to someone under protected circumstances (such as an employee or student) and meeting a stringent test for harassment, described below.

Private universities are not bound by the First Amendment and so there is no obligation to stick the above. But notice it comports quite well with what the university presidents were saying: calling for genocide is protected; telling someone you’re going to kill them is not. Saying you wish all Jews were dead in a heated argument is protected, projecting it onto the side of Jewish dorm is not.

David Lat, in a more restrained piece than Ken’s, basically agrees with the overall thrust, with concurring opinions from Nadine Strossen and Eugene Volokh, staunch First Amendment advocates from different parts of the political spectrum. He points to anti-transgender commentary that is now floating around many conservative campus groups as a parallel. Should that be banned? Many of the conservatives cheering Stefanik would be apoplectic if it were.

To be clear, I reject this intellectual end-run around free speech, whether deployed on behalf of Jewish people or transgender people. Tolerance demands… tolerance, including of the most vile, reprehensible opinions known to man.

However, there is one caveat to the above and that is hypocrisy. In the abstract, the university presidents are right. A commitment to free speech means that, unless you are making specific threats or harassing people, you should be able to engage in vile speech.⁴ But they have not always stuck to that.

David French has been on the frontline of fights over campus censorship and is more than happy to point out how often these universities have flipped to the censorship side of this argument when it has been convenient:

For decades now, we’ve watched as campus administrators from coast to coast have constructed a comprehensive web of policies and practices intended to suppress so-called hate speech and to support students who find themselves distressed by speech they find offensive.

The result has been a network of speech codes, bias response teams, safe spaces and glossaries of microaggressions that are all designed to protect students from alleged emotional harm. But not all students. When, as a student at Harvard Law School, I was booed and hissed and told to “go die” for articulating pro-life or other conservative views, exactly zero administrators cared about my feelings.

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The rule cannot be that Jews must endure free speech at its most painful while favored campus constituencies enjoy the warmth of college administrators and the protection of campus speech codes. The status quo is intolerable.

Frederick Hess:

The truth is that Harvard’s commitment to free inquiry is inconsistent, at best. Last year, Harvard disinvited feminist philosopher Devin Buckley for comments critical of transgender ideology. In 2021, pressured by student activists, Harvard canceled a course on innovative police tactics. In 2020, political science instructor David Kane was canned after inviting renowned social scientist Charles Murray, author of the controversial The Bell Curve, to speak to his class. Harvard admitted Kyle Kashuv, the only conservative to emerge among the Parkland activists, and then revoked his offer for comments he’d made regarding race. Heck, in 2021, Harvard ordered students to remove a possibly “offensive” Nicki Minaj flag.

And of course, this wouldn’t be a real campus speech issue if Andrew Sullivan didn’t weigh in:

In the hearings, President Gay actually said, with a straight face, that “we embrace a commitment to free expression even of views that are objectionable, offensive, hateful.” This is the president whose university mandates all students attend a Title IX training session where they are told that “fatphobia” and “cisheterosexism” are forms of “violence,” and that “using the wrong pronouns” constitutes “abuse.” This is the same president who engineered the ouster of a law professor, Ronald Sullivan, simply because he represented a client, of whom Gay and students (rightly but irrelevantly) disapproved, Harvey Weinstein.

This is the same president who watched a brilliant and popular professor, Carole Hooven, be effectively hounded out of her position after a public shaming campaign by one of her department’s DEI enforcers, and a mob of teaching fellows, because Hooven dared to state on television that biological sex is binary. This is the president of a university where a grand total of 1.46 percent of faculty call themselves “conservative” and 82 percent call themselves “liberal” or “very liberal.” This is the president of a university which ranked 248th out of 248 colleges this year on free speech (and Penn was the 247th), according to the Foundation for Individual Rights and Expression. Harvard is a place where free expression goes to die.

(One point to clarify as I re-read that: being against chosen pronouns in the abstract is fine. But misgendering someone repeatedly to their face might constitute harassment.)

To their credit, the men aren’t calling for these schools to censor anyone; they’re just pointing out that the commitment to free speech is inconsistent, context-dependent and heavily burdened by ideology. And it should not be any of those things. The same policies should apply to conservatives and liberals, to progressive and populists, to anti-Semites and anti-LGBT bigots. We should be a nation of David Goldbergers, defending the free speech rights of all, even those who want us dead.

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In the end, the Nazis didn’t march on Skokie. The court cases cleared the path for them to follow their original plan to march in Chicago where they disappeared into history. The residents of Skokie built a Holocaust museum where the Nazis had intended to march. And today, the American Nazi Party is mostly known for the Supreme Court case and boasts fewer members than a well-funded African-American Studies Department. In the end, the best solution was to let people see just how vile, stupid and ignorant the NSPA was. There was no need to cancel them; they cancelled themselves.

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To put my cards on the table: I believe not just in free speech but in, as FIRE President Greg Lukianoff describes, a culture of free speech. That is, one that welcomes open expression and debate even in parts of society not controlled by government and therefore not necessarily bound by the First Amendment. I believe in the right of Nazis to march. I believe in the right of the KKK to spew bigotry. I believe in the right of overeducated white kids to chant “From the River to the Sea” and think that makes them cool. And I think our society would be better and higher education specifically would be better if the leaders of our most prestigious universities embraced that ethic rather than trying to do a selective tap dance around it to appease campus activists.

To put it even more bluntly: I would rather have literal Nazis on the student quad than have University presidents pick and choose what speech is acceptable and what speech shall be banned. If those students choose to march in front of a Jewish fraternity or besiege the campus Hillel or march into my office, that’s different. That’s harassment and universities have a plethora of rules to deal with that. But we should always err on the side of free speech when we can. Scream into the winds of history, monsters. And let those winds carry you into obscurity just as they once did to the Illinois Nazis.

I believe this is what the university Presidents were trying to say. But their message was undermined by their own garbling, their inconsistent history on free speech and, to be fair, Stefanik taking advantage of the situation to demand a yes-no answer to a question that doesn’t actually have a yes-no answer.

And when it comes to criticism of the university presidents, that is the gripping hand. If you can be humiliated and called out by an intellectual bantamweight like Stefanik, maybe you shouldn’t be the public face of the university. I have no ill will toward any of these women, who seem to be nice enough people and are popular on their campuses. But the present moment seems to demand more than they are capable of delivering. I hope they can fix that while in their current positions. But it’s hard to blame alumni, students, donors and faculty who think that someone else would be better in that role.

1. Metaphorically, of course. Stefanik couldn’t hold my weight. Ernst maybe, but not Stefanik.
2. Some people have tried to claim this is not what it means and it seems like many of the people chanting it don’t know. I would submit, however, that if your slogan can be reasonably interpreted as a call to cleanse seven million Jews from Israel and establish an Islamic state, which is what Hamas means by it … maybe it’s time for a different slogan.
3. It is also noteworthy that the protesters never hold the Arab nations accountable for their actions with regard to the Palestinians. Jordan occupied much of what supposed to be Palestine for decades. Egypt not only maintains a blockade of Gaza, but has engaged in military actions in response to terrorist attacks. They even flooded Gazan tunnels with seawater and raw sewage to stop their use, an action that has been called ‘environmental terrorism’ when Israel has even considered it. Assad has bombed and murdered Palestinian refugees for the sheer hell of it. The double standard is striking.
4. We’ll table, for the moment, what does and does not constitute calling for genocide. I will note however, that Stefanik herself has feet of clay on this subject.