We need more freedom of speech on campus, but that can’t include advocating for genocide – Minnesota Reformer

The recent testimony of the presidents of MIT, Harvard and Penn before a congressional hearing on antisemitism laid bare the profound challenges faced by academic leaders attempting the difficult task of managing intellectual inquiry on campus, which means balancing often contradictory goals: protecting long cherished academic freedom and First Amendment rights, while also ensuring a safe learning environment that protects students from harm, which might require repressing dangerous speech. The presidents were put on the spot before the nation and confronted with a demand to define the limits of free expression on a college campus.

The presidents were questioned by Rep. Elise Stefanik, R-N.Y., who began by asking Penns then-President Liz Magill, Does calling for the genocide of Jews violate Penns rules or code of conduct, yes or no?

One-by-one, the presidents tried to answer on behalf of their campuses. None would explicitly answer the question without qualifying their responses. The presidents, who had already condemned antisemitism, were trying to balance the denunciation of bigoted, inflammatory statements with the universitys commitment to free speech.

Calls for genocide provide a revealing test case for campus free speech, and a bevy of critics seems to think the presidents failed the test with responses like, It is context dependent. The meaning of any speech is, of course, context dependent, but pointing that out was clearly not ideal in that particular context.

The rich irony of the viral exchange at the congressional hearing is that conservative culture warriors, who are now calling for limitations on speech to protect particular communities of students, have for decades decried campus speech codes that they say enforce a campus-wide left-wing or antiracist dogma intended to change American society.

Although the greatest threat to free speech in education comes, I believe, from the right (think: Florida and Texas), and the sweeping conservative critique isnt entirely accurate, theres some truth to the accusation that censorship is also coming from the left.

We saw it earlier this year at Hamline University, where Im a professor of religion. An adjunct art history instructor was labeled Islamophobic by the chief diversity officer and had a course taken away from her because she showed a work of 14th century Persian Islamic art that represented the Prophet Muhammad.

Indeed, threats to the freedom of speech in educational settings ranging from kindergartens to universities have come from both the right and the left, and from places as varied as the government, university administrations, school boards and groups of students.

In the face of this emerging threat, the Foundation for Individual Rights and Expression vigorously defends the freedom of speech and expression, and academic freedom on college campuses, in a principled, nonpartisan way. They have a legal defense fund, as well as a research wing that tracks and analyzes censorship, speech codes, student and faculty attitudes toward free speech and its limits, and various forms of silencing, pressure and coercion that serve to stifle speech.

During a weekend in October, I attended FIREs annual faculty conference, which gave me some useful lenses through which to understand the recent uproar regarding the congressional testimony of the three presidents.

The FIRE conference brought people together around a shared set of principles, values and commitments that transcend disciplinary lines. At the conference, we heard from sociologists, philosophers, mathematicians, legal scholars, political scientists and biologists, among others. Virtually everyone at the conference felt that these principles are increasingly under threat from across the political spectrum.

All of the attendees displayed a deep commitment to freedom of speech and academic freedom, and had gathered to learn, strategize and inspire. And almost all had a story involving themselves or colleagues who were silenced or who spoke and paid a price.

There were many important takeaways from the conference, but here are four:

While presenters discussed the threat posed by state censorship and university speech codes, some argued that the most damaging form of repression is self-censorship. That was the argument of Harry Blain from California State University Sacramento, who called student self-censorship the most pervasive and intractable problem. The silencing effect of fear on classroom conversations is a significant problem, both because students are not exposed to challenging views, and also because they are not learning how to disagree with and debate others with different perspectives.

Self-censorship among faculty is also a problem that diminishes the classroom experience for students.

Unlike the latest noisy campus free speech controversy, self-censorship is by definition silent, even though the detrimental effect on students is more consequential. If professors are afraid of being reported, with possible consequences such as the loss of future teaching opportunities (especially for non-tenured faculty), and if they are declining to teach certain perspectives, their students are being deprived of a crucial element of their education. And students who censor themselves deprive the class community of an opportunity to engage with their ideas. They also deprive themselves of the opportunity to learn through attempts at articulating their thoughts on controversial matters and engaging with those who respond.

Self-censorship takes a toll on faculty. I met a professor in the social sciences at a highly respected institution who told me that they are continuously stifling themselves, and they feel they are living a lie by presenting without counterargument the officially approved view on gender and sexuality (the one accepted by most administrators, faculty and students at the institution). When I asked them why not just give some examples of alternative perspectives alongside the approved view, they said that even presenting texts supporting the alternative perspective would almost certainly land them in trouble.

The principle of defending unpopular or controversial views was a central theme of the conference, and the actual expression of such views some of which I myself found disturbing and occasionally even offensive occurred numerous times throughout the conference, both from the podium and around the tables. And this is precisely one of the reasons that the conference experience was so powerful.

The attendees were the most ideologically diverse group of people I have been around in an academic conference setting, and this means that along with the kindred spirits I encountered there, there were people who held views that I strongly reject. The percentage of attendees who hold what most would consider conservative views was far higher at the FIRE conference than in most university settings I have been in (most attendees would certainly consider me to be one of the liberals), and I benefited from the conversations. It was refreshing and instructive to interact with people who were practicing what they preached having spirited discussions about highly controversial issues without anyone claiming to be harmed, trying to silence or shout down another, or throwing pejorative labels at others because of their viewpoints.

There was a willingness, often an eagerness, to talk about highly controversial subjects. Within 20 minutes of first meeting people, I would find myself in a conversation about race, gender, sex, political conflicts, etc. how we address them in the classroom, and what views are increasingly excluded from the academy, often due to self-censorship.

In many conversations people said something like, I wouldnt normally say this in front of people, but I can say it at this conference. This does not mean that they felt comfortable saying something because they anticipated agreement from others, but rather because they knew that anyone who disagreed with the argument would address it with respectful argumentation and debate. The lively conversations among attendees showed that disagreements about sensitive, controversial topics can be carried out with civility, humor and good will.

Arguments can annoy, offend and disturb. But I dont believe that an argument can by itself do harm. We should welcome arguments with which we strongly disagree, as they give us the opportunity to articulate precisely why they are wrong.

Cass Sever from Mount Holyoke College explored the notion of psychic harm, which she described as invisible, unfalsifiable damage to the psyche that occurs in moments of interaction. The problem with an unfalsifiable statement one which cannot be refuted since there are no criteria for evaluating it other than the persons subjective feeling is that there is no way to challenge the claim of harm. In other words, if I believe myself to be harmed, then I was harmed. The claim, therefore, shuts down the conversation.

Imagine a student or professor who wants to criticize the actions of the Israeli government (or Hamas), and their reasoned argument is met with accusations of antisemitism (or Islamophobia) that is labeled harmful. There is no way for the speaker to explain why their statement of criticism is not antisemitic (or Islamophobic), because there are no criteria to evaluate the appropriateness of the label other than the feelings of the complaining person. This approach will result in silencing the speaker unless they want to risk significant consequences for inflicting harm.

Sever argued that there has been a shift in criteria for evaluating harm from objective (harm that can be demonstrated empirically, such as a lost job or a physical injury) to purely individual subjectivity. This has created a problem for universities. Universities are committed to preventing harm to their students and ensuring them a safe environment in which to learn. Many students say that preventing harm is equally or more important than defending free speech rights, so a claim of harm can shut down a conversation or make a particular subject unteachable.

In the case of Hamline University, some Muslim students claimed that showing a painting by a Muslim artist to honor the Prophet Muhammad was harmful even if Muslim students did not have to look at it, which would make the teaching of that painting in any classroom prohibited. (Note: I said some Muslim students, not all. Tellingly, some Muslim students who disagreed with the complaining students remained silent rather than risk disapproval by their peers and accusations of disloyalty.)

A student can make the perfectly reasonable (and wholly subjective) claim that they are upset, offended or angry. It is entirely different to claim harm. A skill that we can impart to students is the ability to respond effectively to an argument that offends them and to learn to be upset without considering themselves to have suffered harm.

Especially given the nations polarized politics and increasing threat of political violence, students must learn how to engage in difficult conversations over controversial issues with civility and sophistication, and the classroom is the ideal setting for this work. While we often focus on speaking and argumentation skills, we should also teach skills in listening to others and managing emotions. Listening to someone argue for a position that you passionately disagree with is an exercise in observing and controlling the powerful, negative emotions that can arise, so that we can listen with as much interpretive charity as possible and respond as skillfully as possible (or, if someone is unbearable, walk away). Censoring disturbing or offensive speech robs us of the opportunity to cultivate these skills and hone our responses. FIREs Nico Perrino puts it well: When you censor people, you dont change their minds you just dont know what they actually believe.

My greatest test in emotion management at the FIRE conference occurred during the lecture by Amy Wax, a tenured law professor at the University of Pennsylvania who was accused by her dean of holding a pseudo-scientific vision of white superiority and introducing her ideas in a classroom setting. The university administration is trying to fire her; Wax is fighting back.

I strongly disagree with many of her views, which can alternate between the absurd and the offensive. I would normally not attend an Amy Wax lecture. In fact, this was not supposed to be a lecture, but a debate between Wax and her colleague Jonathan Zimmerman (I would have loved to see that). Unfortunately, Zimmerman was sick and could not attend. So, Wax gave a talk and answered questions.

As I sat there and listened, I could feel my blood pressure rise, and I found myself involuntarily shaking my head, rolling my eyes, and looking in disbelief at my colleague. Wax does not do herself any favors with her strident, combative oratory, and she often phrases things in the most provocative way possible. (For instance: Thats lefty propaganda!).

Yet, throughout the speech, because of the influence that the FIRE community has had on me, I tried to discern, through the loud voices fashioning the sharpest possible responses to Wax, the voice that says, Thank you. Her speech was an opportunity to both manage the emotions that arose as I listened, and also to articulate precisely why she an experienced and knowledgeable professor of law is so wrong. Every such encounter is an opportunity to develop and hone our thoughts.

Having taught religion for over 25 years, I am confident that students can handle being challenged, provoked and disturbed. In addition to the valuable experience of being exposed to viewpoints that call their fundamental beliefs into question, students learn the value of resilience. They do not need to be protected from unsettling or offensive views, and the attempt to do so denies them a crucial skill they will need to thrive in a diverse and often divided nation.

A university is one of the few places that create spaces for conversations on important, contentious issues (almost all of which require or at least benefit from the knowledge and expertise that students are acquiring in the classroom.) Because the university is the site of these conversations and debates, some speakers argued that the institution must not itself be a participant in the debate. Institutional neutrality means, then, that a university should not make statements on the issues of the day.

The theme of institutional neutrality was prominent throughout the conference, including in Steven Pinkers keynote address. Like others who spoke at the conference, the Harvard psychology professor advocated for adopting the principles of the University of Chicagos 1967 Kalven Report, which states that The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.

As Pinker put it, universities should be forums for debate, not participants in debate; referees not players.

The Kalven Report recognizes an important exception, which Pinker acknowledged: From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.

Once we grant this, the exceptions to institutional neutrality might begin to grow. What if proposed legislation constitutes a threat to the health of the university community? How can a campus be truly open to vigorous conversation from a wide range of viewpoints if members of that community are threatened or targeted? Can a university take a public position on homophobic legislation that would impact members of the campus community to the extent that some feel they need to leave the state? What about legislation that would negatively impact valued members of the university community who are immigrants or students protected by the DREAM Act?

Proponents of institutional neutrality sound an important cautionary note regarding statements by university administrations, but since universities are value-laden institutions (the commitment to free speech and academic freedom are themselves values that need protecting, as the Kalven Report acknowledges), and their flourishing presupposes a vibrant community where members do not feel under threat, then decisions about public pronouncements on behalf of the university will always involve judgment calls.

The issue at hand involves unpopular or controversial points of view, particular arguments for positions that others might find disturbing or offensive. This is not about any speech that the law would prohibit, like the proverbial fire in a crowded theater.

I was recently asked if I am a free speech absolutist. The short answer is no. It is unlikely that anyone at the FIRE conference would be a thoroughgoing absolutist, because all of us recognize that there are constitutional limitations on free speech, including incitement to violence, harassment, defamation, etc.

Catherine Harnois from Wake Forest University showed that a framework that is legal in orientation if its legally protected speech, then it should be protected speech on campus can present a compelling alternative to limiting speech based on what upsets or offends (an approach that makes it a matter of us against the purveyors of hate). Harnois argues that campus speech codes that limit speech and expression beyond what the Constitution allows are typically written in ways that are very vague, which leads to uncertainty about the boundaries of acceptability and inconsistent enforcement by administrators.

There are also limitations on speech that are appropriate to a particular institutional context, such as confidentiality requirements or professional standards. The statement on academic freedom issued by the American Association of University Professors already recognizes this by requiring that faculty abide by criteria involving relevance (e.g., a biology professor cannot spend the entire class ranting about a hated politician) and the fair treatment of students. Obviously, a professor cannot verbally abuse a student with epithets in a classroom.

The question of free speech on campus and its limits has rarely been more urgent or polarizing, as weve seen in recent weeks.

As the opening remarks from the congressional committees chair, Rep. Virginia Foxx, R-N.C., demonstrated (What is it about the way that you hire faculty and approve curriculum thats allowing your campuses to be infected by this intellectual and moral rot?), the purpose of the congressional antisemitism hearing was not to thoughtfully discuss the challenging issues surrounding antisemitism and free speech. Rafael Walker, writing in the Chronicle of Higher Education, points out, it became clear that Republicans intended to use the dire issue of antisemitism on college campuses as a Trojan horse for the larger attack on higher ed that they have been perpetrating for decades now.

One reason that the presidents of Penn, MIT and Harvard faced criticism for refusing to give a straightforward answer on whether or not calling for the genocide of Jews should be protected speech is because their institutions have been willing to punish members of their communities who direct statements seen as bigoted at other groups of people. For example, as Bari Weiss points out, Harvard students were told in a mandatory Title IX training that addressed such attitudes as racism and sexism, that any words used to lower a persons self-worth are verbal abuse.

As James Kirchick, a senior fellow at FIRE, wrote in a New York Times essay, Critics are correct to note the hypocrisy of university leaders who have belatedly come to embrace a version of free speech absolutism that tolerates calls for Jewish genocide after years of punishing far less objectionable speech deemed offensive to other minority groups.

There were other reasons why the presidents got themselves into so much trouble (the president of Penn has already resigned). To some degree, they were led into a trap by Stefanik, who had a political agenda. The infamous video clips from the hearing that have been seen by millions focused only on the question about genocide, which, to my knowledge, has not been advocated by any student organizations. Prior to that, the questions were about statements that have actually been made by student organizations supporting the intifada revolution and proclaiming, From the river to the sea, Palestine will be free.

Neither of these statements explicitly calls for the genocide of the Jewish people. While some student groups have expressed opposition to Zionism and do not believe that Israel has a right to exist, neither of these statements necessarily means that the students support the elimination of the Jewish people. One problem here is that genocide has a range of definitions. As Eugene Volokh and Will Creeley pointed out in the Los Angeles Times recently, students must be able to advocate for actions during wartime that would result in the mass slaughter of civilians (otherwise, we would not be able to have a classroom conversation about whether dropping atomic bombs on Japanese cities was justified or ethical, as the authors point out.)

It is essential not to conflate the criticism of the government of Israel, or even anti-Zionism more widely, with antisemitism. While the two often overlap (many, but certainly not all, anti-Zionists are also antisemites), they must not be equated. Conflating the two inevitably leads to the suppression of speech by preventing the criticism of the Israeli government (just as conflating the criticism of Hamas with Islamophobia would silence protected speech). One notable example of this conflation can be found in the U.S. Houses recent resolution condemning antisemitism, which wrongly states that anti-Zionism is antisemitism.

Despite my strong commitment to free speech, which has been reinforced by my work with FIRE, I believe that explicit calls for genocide understood as involving the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such, in accordance with the definition in the UN Convention on Genocide are violations of a sound campus free speech policy, and such views should not be acceptable on college campuses and should be prohibited. In this regard, I disagree with FIREs official stance, released after the three presidents testimony, which is that administrators should eliminate these (speech) codes and defend free speech in all cases.

The only way that a university campus can function as a venue for vigorous debate about controversial and important topics is if everyone in the community is allowed to participate without fear. If segments of the population are excluded from the conversation by threats or coercion, if they are intimidated into silence, then the protections of free speech are meaningless. So, there must be certain principles or ground rules that everyone accepts as a condition of the kinds of conversations that the protections of free speech make possible.

My speech is not protected if it is used to silence, exclude, threaten, or intimidate you.

The Kalven Report, which I believe largely reflects FIREs perspective, itself recognized that the university as an institution must oppose threats to the free inquiry that is at the heart of the universitys mission. The university has an obligation to defend its interests and its values.

Surely, one of the interests of the university is creating a community in which free inquiry is possible. FIRE recognizes that some speech, such as threats or harassment, can be constitutionally prohibited, and the university can certainly ban illegal speech.

One of the key factors in determining whether speech crosses a line is whether or not it is directed at an individual or simply the expression of a view to a general audience. The kind of speech that can intimidate or harass someone into silence is normally considered, to use First Amendment scholar Eugene Volokhs terms, one-to-one as opposed to one-to-many.

In this framework, you can ban someone from harassing another individual, but you cant ban someone from harassing a group of people like a racial or religious group, because strictly speaking youre not engaged in harassment when its a group of people. To put it another way: You cant threaten to kill a person, but you can say a group of people should be killed.

I would argue that speech does not have to be directed at a particular individual to function in these intimidating and harassing ways. Some instances of one-to-many speech can certainly be threatening to students, as when one group of students advocates for the killing of another group. An open conversation cannot occur when some participants have proclaimed their desire to see others annihilated. It is hard to feel included in a conversation when other participants call for your death.

MITs Code of Conduct defines prohibited harassment as unwelcome conduct of a verbal, nonverbal or physical nature that is sufficiently severe or pervasive to create a work or academic environment that a reasonable person would consider intimidating, hostile or abusive and that adversely affects an individuals educational, work, or living environment. I would argue that a campus in which some students know that others are calling for their death would certainly be an example of sufficiently severe, intimidating and hostile speech that adversely affects their educational environment whether that speech is personally targeted at them or not.

If college campuses can demand that students respect the right of other students to speak, then they can demand that they recognize their right to live. Explicit calls for genocide cross the line, and universities can reasonably prohibit them.

This does not imply that universities should prohibit the advocacy of intifada or the chanting of From the river to the sea, as these do not in themselves constitute calls for genocide.

A student should be able to argue that any nation-state is illegitimate (including the United States, when seen through the perspective of the lands Indigenous people, for instance). A student should be able to condemn the Israeli government for its actions without being labeled antisemitic, just as a student should be able to condemn Hamas or Iran without being labeled Islamophobic. We must give the widest possible latitude for all views and teach students that they must learn to manage the intense emotional responses they might feel when confronted with such arguments and how to respond most effectively.

If the three presidents were to give the answer that almost everyone was waiting for Yes, calling for the genocide of Jews is as violation of campus policy they would have to ensure that only the actual advocacy of the elimination of the Jewish people (or any group of people) would be considered a violation. Calls for a greater Palestine implying the elimination of Israel (or a greater Israel, calling for the elimination of Palestine), must be protected speech on a college campus, regardless of how disturbing the speech might be to some communities.

The university presidents were right that when evaluating speech, context matters, and we must reflect on whether or not the speech is targeted, whether or not it constitutes harassment or threat, and how it is related to conduct. But private universities can also articulate a set of commitments and values that enable the kind of inquiry and conversation that are foundational to its mission.

In regard to free speech, I think that FIRE is right that we should be cautious in going beyond the law and constitutional limits. But I believe that the call for the murder of members of the community and only when it is explicitly made, not implied by someones political views is incompatible with the universitys values and mission.

FIRE conference attendees could look across the table and, in the midst of our debates, be mutually grateful for the principles that enable us to talk about issues like this without fear of being silenced or accused of causing harm. Everyone involved was keenly aware that creating the spaces to talk through these issues is vital to the health of democracy, and everyone was committed to defending the right of their debate adversaries to speak freely.

For me, that includes the Amy Waxes of the world. No matter how wrong they are.

If a safe space means not a place where you are protected from challenges to your beliefs, but rather a place that is safe to explore challenging, controversial views, then the FIRE conference, a place for defenders of ideas that some would consider dangerous, was the safest space of all.

Editors note: The author was given the Berkson Courageous Colleague Award at FIREs faculty conference for his support of Erika Lpez Prater, the Hamline University art professor who lost her position after showing images of the Prophet Muhammad in an art history class.

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We need more freedom of speech on campus, but that can't include advocating for genocide - Minnesota Reformer