Opinion: College presidents reveal three surprise truths about free speech and antisemitism

[mahatmakanejeeves]

Opinion | College presidents reveal three surprise truths about free speech and antisemitism

By Jason Willick
Columnist
December 7, 2023 at 7:08 p.m. EST



Claudine Gay, the president of Harvard University, speaks during a House Education Committee hearing on Capitol Hill on Tuesday. At right is Liz Magill, the president of the University of Pennsylvania. (Mark Schiefelbein/AP)

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Elite college presidents are under fire for their platitudinous responses this week to high-dudgeon questioning by Rep. Elise Stefanik (R-N.Y.) over whether calls for “genocide of Jews” violate the schools’ policies. Stefanik demanded yes-or-no answers, but the presidents of Harvard University, the University of Pennsylvania and MIT gave conditional ones, with Penn’s president calling it a “context-dependent decision.”

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.”

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Opinion by Jason Willick
Jason Willick is a Washington Post columnist focusing on law, politics and foreign policy. Twitter https://twitter.com/jawillick

[Bernardo de La Paz]

1. Journalists on strike at WaPo. I'm not clicking through. . . . . nt

[AZSkiffyGeek]

4. The strike was yesterday I believe

Only a 1-day strike

[eppur_se_muova]

3. Schools cannot control students' speech, nor should they try, nor should they have they authority ...

... to do so, except when threats are clear. Even this short excerpt covers that pretty well.

Repugs like Stefanik -- who is taking on a more and more evil role as henchman (henchwoman?) with every public appearance -- only want to establish the control of student speech as the new norm. They might very well be as guilty of antisemitism as the students who have gotten their ire (ostensibly) up but they want to set the precedent. As the Brits so often say, "it's the thin end of the wedge", and you know damned well the Uglicans won't hesitate to drive that wedge home if they get the chance.

[mahatmakanejeeves]

5. FIRE to Congress, university presidents: Don't expand censorship. End it.

FIRE to Congress, university presidents: Don’t expand censorship. End it.

No hypocrisy. No double standards.

by Nico Perrino December 6, 2023

For FIRE's statement on University of Pennsylvania President Liz Magill's troubling follow-up statement to her testimony before the House Committee on Education & the Workforce, see: "Penn President Liz Magill signals profoundly misguided willingness to abandon free expression."

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FIRE has battled vague, broad college harassment policies since our founding in 1999. We have defeated hundreds of unconstitutional, illiberal harassment policies at campuses nationwide — and we target these particular speech codes because harassment policies have long been the tool of choice for censorial college administrators. FIRE’s case archives prove that harassment charges are regularly used to censor all kinds of speech, from punishing a student group at Long Island University critical of trans issues to investigating pro-choice students at American University.

Of course, Harvard, Penn, and MIT all have harassment policies that are ripe for abuse. So — given their testimony yesterday and apparent newfound commitment to free speech — we invite these institutions to reform their policies once and for all. Students have both a right to free expression and a right to learn free of discriminatory harassment. Institutions like Harvard, Penn, and MIT have a legal and moral obligation to deliver both.

Fortunately, we have legal guidelines for what constitutes unprotected discriminatory harassment. We don’t need to guess. The Supreme Court laid out the standard for peer-on-peer harassment in 1999: The conduct in question must be targeted, unwelcome, and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” This is a high, but not insurmountable, bar. Some individuals on campus may well be engaging in behavior that qualifies as harassment. ... The bottom line is that harassment is a pattern of targeted behavior. For example, it’s hard to see how the single utterance Rep. Elise Stefanik asked about during the hearing — no matter how offensive — would qualify given this pervasiveness requirement.

Link to tweet

No student may be expelled — or otherwise punished — for expression that is protected by the First Amendment on a public college campus, or by similarly stringent institutional promises on a private college campus. But when students engage in conduct that isn’t protected under the First Amendment — for example, by disrupting events, blocking egress in and out of buildings, engaging in violence, or issuing true threats to others — those actions are not protected by the First Amendment. Institutions must take all reasonable measures to protect students from unprotected conduct that stifles free speech or credibly threatens the physical safety of others.

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[mahatmakanejeeves]

6. How Harvard, Penn, MIT leaders answered -- or skirted -- questions on antisemitism

ANSWER SHEET

How Harvard, Penn, MIT leaders answered — or skirted — questions on antisemitism

By Valerie Strauss
December 6, 2023 at 1:00 a.m. EST

The House Education Committee called the presidents of three elite universities — Harvard, the University of Pennsylvania and the Massachusetts Institute of Technology — to a hearing Tuesday and demanded they answer tough questions about antisemitism on campus. Sometimes they answered directly. Sometimes they didn’t.

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The article goes on to show a partial transcript of what Stefanik had to say.