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