Despite The Bungled Testimony Of University Presidents, Free Speech On Israel-Palestine Is The Best Policy

University presidents should have said “advocacy for genocide” is punishable, but they are correct to allow a wide range of free speech, even if that means some antisemitic rhetoric must be tolerated.

College presidents from Harvard, University of Pennsylvania, and MIT got tangled in controversy this week when they failed to unequivocally state that advocacy for genocide of Jews would be considered a violation of their university’s code of conduct. Attempting to defend free speech, they bungled this answer by stating that the inquiry would be “context dependent” and would have to be accompanied by some form of “conduct” to be punishable.

Big mistake.

There was no reason for them to be so defensive in their responses because advocacy for genocide is not protected speech under exceptions to the First Amendment for threats and incitement to violence. Even if advocacy for genocide was protected speech, the presidents should have realized that advocacy of genocide against Jews violate their own policies against religious discrimination and harassment. If individuals or groups are permitted to voice support for the mass execution of Jews -- which would include Jewish students, faculty and staff on their campuses -- that alone is enough to create a “hostile educational environment” for Jews on campus that should be prohibited and punished.

These presidents ought to have been sufficiently nimble to realize this, even at the end of a very long hearing. They are now paying the price. Indeed, as I was writing this piece, the news broke that the testimony had cost Penn’s president, Elizabeth Magill, her job.

While the presidents’ overly legalistic testimony was a woefully bad strategy, I can understand the whiplash they are experiencing because for years universities have been ravaged for failing to protect the free speech rights of guest speakers or faculty espousing conservative views, sometimes expressed in hateful and vile ways. Now they are being chastised for the opposite, failing to censor speech emanating mostly from the pro-Palestinian left.

Most universities have properly responded to the criticism they faced for restricting conservative speakers and ideas on campus by adopting a strong free speech ethos. A strong free speech position tolerates hateful, inflammatory, and insensitive speech in the name of promoting an environment of free inquiry and exchange of ideas on campus. In one of the most noteworthy incidents in recent years, the Dean of Stanford Law school came down hard on students and a dean for failing to protect the free speech rights of a visiting federal judge appointed by former President Trump, whose opinions on transgender rights and other issues the students found offensive.

And let’s be clear, this is all happening in an environment where the MAGA-verse has identified the entirety of higher education as a corrupted environment where young people are indoctrinated in ultra-liberal social, political, and economic ideology. Attacks on higher education has been the political response to the social justice movement that arose in the wake of the murder of George Floyd. To attempt to stem calls for institutional reforms in higher education and other institutions to address pervasive systemic racial inequality, conservatives have been seeking to ban certain ideas from being advanced on campus. For example, a law that went into effect in Florida this summer provides that general education courses in Florida state universities:

“May not distort significant historical events or include a curriculum that teaches identity politics … or is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.”

So, the entire hearing, and Rep. Elise Stefanik’s pointed questioning, were part and parcel of an effort to control the types of dialogue that take place on college campuses. Just as many students see their advocacy for the Palestinian cause as part of their own social justice movement here in America, conservatives seek to shut down pro-Palestinian advocacy as part of its larger political program of undercutting the youth-led American social justice movement. Conservatives want to have it both ways – free speech for offensive right-wing speech but bans on contentious speech coming from the political left.

In this context of utter hypocrisy, I believe that universities should stick with their very broad pro-free speech stance, even if this does not satisfy critics calling for censorship of any manifestation of antisemitism on college campuses. Of course, when blatant antisemitism occurs on a campus — such as graffitiing swastikas — it should be identified and condemned. Those who engage in it should be educated as to why it so harmful and pernicious. But banning and punishing speech that is deemed to be antisemitic will lead universities into unmanageable quagmire of speech regulation that undermines the very purpose of an academic institution.

A commitment to campus free speech means that some speech, rhetoric, or ideas that some Jews consider antisemitic will need to be tolerated on campus. Despite the efforts to exclude criticism of Israeli policy and actions from widely accepted definitions of antisemitism, recent controversies over pro-Palestinian events on campus and questions posed during this week’s congressional hearing clearly demonstrate that attempting to ban speech that many Jews consider antisemitic will inevitably lead to the censorship of legitimate criticism of Israel and its decades long approach to the Palestinian conflict. Cracking down on antisemitic speech would also rekindle calls to purge campuses of speech that disparage or cause discomfort to other identity groups. Once a university goes down this path, there is no limit to the kinds of ideas that must be censored from both the campus and the classroom, because there are always individuals who find that certain concepts, ideas, or language makes them uncomfortable or even threatened.

I also believe that a policy censoring antisemitic rhetoric on campus would place universities in an impossible position of being a referee regarding what types of ideas or language constitute antisemitism. This is easy when speech promotes conspiratorial antisemitic tropes regarding Jewish power or control of global finance, engages in Holocaust denial, or scapegoats Jews for the world’s maladies. But when it comes to rhetoric about Israel and the Israeli-Palestinian conflict, this is hotly contested space. For example, many argue that any actions or speech that “delegitimize” the state of Israel are inherently antisemitic. I believe, and have argued on these pages, that Israel’s creation by U.N. resolution was uncontestably legitimate. But the suggestion that we should bar from campus those who believe, or express ideas that the U.N. made the wrong decision in 1947, or that Israel took steps in 1948 to consolidate its nation that violated international law and denied human rights, would be contrary to the free debate and inquiry that universities must promote. It would be similarly impossible to enforce Anti-Defamation League (ADL) President Jonathan Greenblatt’s contention that all “anti-Zionism is antisemitism.” Adopting this standard was controversial even within the ADL. The notion that a university campus should censor criticism of an important intellectual movement like Zionism is unfathomable.

Attempting to bar speech that Israel’s most zealous defenders deem to be antisemitic would also paralyze the ability to have a free ranging debate on campus about the Israel-Palestinian conflict. We cannot start a dialogue between students that have widely divergent views about the conflict by defining certain positions as entirely out of bounds. While some students see catchphrase “from the river to the sea” as an antisemitic rant that advocates mass Jewish expulsion from Israel or even genocide others interpret it as a call for Palestinian liberation from Israeli oppression. We have a great need on campus for dialogue that explores these positions and places them in a cultural and historical context. That dialogue will never transpire unless there is a strong free-speech culture at our universities.

I am also not convinced that attempting to banish antisemitic speech from campus will do Jewish students any good. The entire idea of college is to prepare young people to participate in the unwieldy, harsh, cacophonous society they will soon enter. I don’t see how sheltering students while they are in the formative years of college from the antisemitism they will surely face once they enter society will help them one iota.

My general impression has been that while some Jewish students have suffered adverse consequences from antisemitism on campus and the painful rhetoric emanating from protests in recent weeks, by and large, Jewish students are also learning how to counter the speech and ideas with which they disagree. They organize counterprotests without fear, they call for boycotts of speakers, and write persuasive editorials in student newspapers. They properly call out instances of antisemitism when they occur on social media, during campus events, or at protests. There is a word for this resilience-building: Education.

That said, universities have numerous levers to use to protect the civil rights of Jewish students and a duty to educate the community about the scourge of antisemitism.

Universities have the power to control the time, place and manner of the protests taking place on campus. They can keep protests a safe distance from Jewish centers, just as Congress has regulated protests at abortion clinics. They can also ensure that protests are restricted from dormitories, dining halls and classroom areas so that Jewish students can take full advantage of their educational experience. At Duke, the university painted over the phrase “From the river to the sea, Palestine will be free” on a bridge that students use frequently to express their political opinions. While no one was punished for painting the slogan in the first place, and to my knowledge the phrase has not been banned from campus, the university took the position that its placement on the bridge was inappropriate because it is “understood by many in [the Duke] community and beyond as a call for violence targeting the Jewish community.”Not censoring use of the phrase, but removing it from a prominent location on campus that many Jewish students pass and see multiple times per day is an example of how time, place, and manner restrictions can be used to effectively protect Jewish students on campus.

Universities should be diligent in condemning clear acts of antisemitism that occur on campus and explain to the university community why they are contrary to the values of the university and the dignity and respect that all members of the community deserve. Hatred of Jews because they are Jewish is malevolent. Furthering lies about the Jewish people that have been spread and used to justify violence against then for centuries have no place in modern discourse, but especially in places dedicated to educating individuals of every imaginable background. Combatting antisemitism is best accomplished by identifying antisemitic speech and conduct and educating those who voice these sentiments about why it is wrong, not by censoring and punishing speech and ideas.

Universities must also strictly enforce their policies that prohibit harassment and religious-based discrimination. So, any targeted action against Jewish students by other students, protestors, or faculty because of their religion or pro-Israel viewpoints can be sanctioned. Universities should make sure students know they have the power to file complaints and seek recourse. These policies can also be used to regulate activities that are so “severe, persistent, and/or pervasive” that they “significantly interfere with or alter the conditions of education … or create a hostile … learning environment.” The university presidents reiterated on numerous occasions during their testimony that they were actively enforcing these policies and taking disciplinary action when warranted.

I am also convinced that universities have been spurred into action to do more to teach about the origins and forms of antisemitism and take action to reduce the prevalence of antisemitism on campus. This problem has been festering in society for far too long and will take concerted and long-term action to solve. But the serious work that has been done on campus to begin addressing structural racism gives me confidence that similar efforts can and will be made to combat antisemitism.

With the hot war in Gaza contining and the unprecedented upheaval in the entire region that the Hamas terrorist attack and Israel’s response have caused, these issues are not going away anytime soon. Going forward, there will continue to be incidents on campus that some Jews find offensive and there will be disciplinary actions taken that some will interpret as a restriction of pro-Palestinian advocacy. But protecting free speech, enforcing civil rights protections, and developing educational programming and other activities to combat antisemitism and all forms of hate on campus is the proper response to this crisis.

We now need to see if the leaders of these universities are up to the task.