It is an understatement to say that calling for the genocide of the Jewish people is “utterly despicable.”  It is far worse than “utterly despicable.” So I have no sympathy for Liz Magill, the President of the University of Pennsylvania, or the other two elite university presidents who, when asked if such calls violated their university’s rules or code of conduct, said it depended upon the context.  

Magill, and the presidents of Harvard and the Massachusetts Institute of Technology were asked that question by Representative Elise M. Stefanik of New York at a hearing before the House Committee on Education and the Workforce. None of the three answered with an unequivocal “yes.” In all likelihood a truthful answer would have been “no.”

I do not know if any of those schools have a written code of conduct for students. However, if they do, I seriously doubt that those codes would have prohibited speech that called for the genocide of the Jewish people. I am confident in saying that, because if those codes did make such calls a violation of the code, the presidents could promptly have said so. That they did not, and were probably very reluctant to say “no” to the question goes a long way to explain their “context” responses. Answering “yes” to the question would probably have been untruthful, and answering “no” would have been embarrassing.

All of which leads to the question of “why.” Why wouldn’t “speech” calling for the genocide of the Jewish people constitute a violation of the university’s rules or code of conduct? And the answer is because, without more, it is simply “speech.”  

Neither the U.S. government nor any of the states could make mere speech a crime without violating the First Amendment. Popular speech needs no protection. It is only unpopular or utterly despicable speech that needs protection. That is the whole point of the free speech clause. For speech to lose its First Amendment protection it must go beyond mere speech. It must create a clear and present danger of some kind. Speech with the goal of inciting an angry mob to violence is an example. Falsely shouting “fire” in a crowded theater is the usual example of prohibited speech.  

Colleges and universities are institutions that depend upon academic freedom and free speech to accomplish their objective of seeking truth and wisdom. They must allow for a full and frank exchange of views. They need to teach students “how” to think, not “what” to think. In a democratic society there must be room in the marketplace of ideas for unpopular and even offensive speech. Thus, a student code of conduct should allow for offensive and even despicable speech.

But, I’m sure you are thinking, what about “hate speech”? And therein lies the problem, especially for colleges and universities.  

There is today evidence of an increase in antisemitic acts and speech on college campuses. Many Jewish students are expressing feelings of fear and discomfort. In the context of the present Mideast conflict mass protests on college campuses are making some Jewish students afraid. Mere words are contributing to this feeling of fear. The problem for college administrators is to find a solution that does not conflict with the promotion of academic freedom and free speech.

Think about a Jewish student walking among the student dormitories on campus. Hanging from one window is a single banner that says “GAS THE JEWS.” That one sign may make the student angry, but not fearful. And the university administration may be willing to take some action against the room’s occupant. But suppose there is not just one such banner, but a great many of them. Now that Jewish student is likely to be fearful rather than or in addition to angry. And what now is the university administration going to do? Will simply requiring the removal of the banners lessen that Jewish student’s fear? He can’t unsee those banners. Can we expect the university to take punitive action against a large number of students? I don’t know the answer to that question.

Of course, a large number of GAS THE JEWS banners is probably unlikely. But how about a large number of FREE PALESTINE or FREE PALESTINE FROM THE RIVER TO THE SEA banners? GAS THE JEWS may be condemned as hate speech, but the RIVER TO THE SEA banners could be simply speech. In the context of the atrocities of Hamas on October 7, our Jewish student may not see much difference between the two banners.

So, if you were one of those university presidents, how would you have answered Stefanik’s question?

Howard Lurie is Emeritus Professor of Law at Charles Widger School of Law, Villanova University.

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