The episode has the makings of a turning point in the culture wars over higher education. But whether it’s constructive or destructive depends on what lessons are drawn. To that end, here are three:
First, justified concern about American campus radicalism cannot obscure the fact that the presidents were objectively right on the free-speech merits. Universities that claim to be forums for free inquiry should not promise Congress that they will punish students or faculty for constitutionally protected speech. Private universities are not bound legally by the First Amendment, but most have committed themselves to abiding by its spirit and meaning (even though they often don’t; more on that below).
Like racist, sexist, homophobic or anti-Muslim speech, antisemitic speech is generally constitutionally protected. To legally constitute harassment, speech must be so pervasive that it interferes with someone’s ability to access education — think of a mob that follows someone around campus or blocks a building. An isolated outburst, social media post or protest chant doesn’t meet that threshold.
Even speech endorsing violence in the abstract is protected. This might seem surprising, but it’s well-established law. Speech crosses into incitement only if it is both intended to cause violence and likely to cause violence in the imminent future. As the Supreme Court affirmed in 1969’s Brandenburg v. Ohio, advocating “the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.”
Stefanik’s questioning was effective because calling for the genocide of Jews shocks the conscience. But even the most committed antisemites are rarely so blunt. As Senate Majority Leader Charles E. Schumer (D-N.Y.) explained in a speech last week, they hide behind other terms and tropes. Stefanik suggested in her questioning that the term “intifada,” referring to violent Palestinian uprisings, calls for genocide. Others suggest that the Hamas-favored slogan “from the river to the sea, Palestine will be free,” is genocidal in its intent. Still others might consider “anti-Zionism” writ large to be in that category, because Israel is the only majority-Jewish nation and its enemies have shown their willingness to use genocidal means to destroy it.
But these terms, in isolation, clearly enjoy First Amendment protection. If universities announced policies of punishing expression deemed genocidal — in the absence of harassment or incitement of imminent violence — they would be committing themselves to refereeing the meaning of various anti-Israel slogans associated with the Palestinian movement.
And not only anti-Israel slogans. Speech supportive of Israel’s war in Gaza could also be deemed genocidal by activists; see how the University of Southern California briefly barred a professor from campus for saying Hamas members should be killed. Creating a new “genocide” category of punishable speech would suppress and distort debate on the Israel-Gaza war. Debates about China and Russia, also accused by some of genocide, would also be chilled.
Second, the university presidents’ professed commitments to First Amendment principles rang false. U.S. higher education, especially over the last decade, has become increasingly intolerant of views that do not conform to progressive ideology. Greg Lukianoff, president of the Foundation for Individual Rights and Expression, argues that the political climate on campus is significantly more oppressive than during the McCarthy period of the 1950s. “According to the largest study at the time, about 100 professors were fired over a 10-year period during the second Red Scare for their political beliefs or communist ties,” Lukianoff wrote in the Atlantic. “We found that, in the past nine years, the number of professors fired for their beliefs was closer to 200.”
The contempt for intellectual competition and free debate so often shown by elite universities raises questions about their embrace of maximum toleration in the context of an upsurge in anti-Jewish hatred. Are they hypocritical? Or would it be more accurate to say that they believe in group hierarchies, and are acting in accordance with the view that Jews, as “oppressors,” don’t deserve an identity politics dividend that is owed to other groups?
Stefanik’s political theater helped expose that toxic campus hierarchy. But it implied the wrong solution. It implied that First Amendment principles should be further suspended on campus for the “benefit” of Jews. That approach would benefit no one except the new bureaucrats hired to police noncompliant speech. It would further entrench the identity-politics system that got us here.
That system needs to be dismantled and freer debate restored. Perhaps the humiliation of these presidents will create an opening for such reform, but that would require a long slog of institutional transformation. Before she was Harvard’s president, Claudine Gay was involved in the pushing out a dean after students protested his legal representation of Harvey Weinstein.
The path of least resistance, unfortunately, is for universities to respond to their current bad press by reshuffling the campus hierarchy of oppression, affording Jews victim status and censoring accordingly. That seems to be the approach of Penn’s president, Liz Magill, who, again caving to pressure, released a video reversing her comments to Congress and announcing that Penn’s speech codes would be “evaluated,” presumably to restrict more speech.
Finally, it should now be obvious that there is a failure of leadership in American institutions. Economist Tyler Cowen described the college presidents’ testimony as “ruled by their lawyers, by their fear that their universities might be sued, and their need to placate internal interest groups.” Even as the presidents answered Stefanik’s narrow question defensibly, they did so without courage or conviction.
They could have defended the progressive philosophy that really rules universities, and explained to Congress why groups should be treated differently according to their “oppressed” or “privileged” status. Or they could have owned a fidelity to the First Amendment and explained forthrightly that hate speech, even abstract advocacy of violence, is often constitutionally protected — no matter the group that takes offense.
But that, too, would have offended this or that stakeholder. What seems in short supply in university leadership is underlying conviction and a sense of purpose beyond the bureaucratic instinct for self-preservation. The academy’s decline will continue until it can produce leaders with the strength to break the ideological frenzy that has taken hold. That will mean rejecting identity politics, cracking down on mobs that disrupt and vandalize, but defending protected speech to the hilt.