However loaded, the question was a factual one about university rules, not a normative one about what the rules ought to be. The presidents seemed to recognize as much, offering nuanced factual answers along the lines of, “it depends on whether the calls are general speech or speech targeted in a harassing manner at an individual.” The nuance didn’t go over well. Many observers, it seems, felt that the presidents neither expressed empathy nor explained their positions effectively. Moreover, the answers, coming from leaders of institutions that have been willing to restrict offensive speech in past instances, sank under the weight of real or perceived hypocrisy. And many listeners, apparently mistaking the factual question (“what are your policies?”) for a normative one (“what do you think the right policy is?”), didn’t like what they heard.
A lot has gone wrong in this conversation. Some of it is due to conceptual muddle, some to bad faith, and some to failures of leadership. But the importance of the issues transcends the drama of the occasion. We need to unpack what went wrong—including the failure of the presidents to explain why they think their policies are the right ones—and start thinking more clearly and strategically about how universities can better navigate this moment.
Let’s start by clarifying what we are talking about. There are many settings on campus where no one has particularly robust speech rights. Even in public universities, which are bound by the highly speech-protective First Amendment, students are not permitted to plagiarize, repeatedly demand to discuss politics in physics class or physics in politics class, or shout down invited speakers. Any campus has restrictions on the time, place, and manner of expression meant to safeguard the fundamental research and teaching mission. What we are talking about, here, is speech undertaken consistent with such restrictions, within a university’s broad public spaces.
In this setting, the presidents are right that context matters. I’m a Jew on campus. According to First Amendment jurisprudence, a member of my university community is not allowed to follow me around, pointing and yelling “kill all the Jews.” But in a public university—or any private university whose rules are broadly congruent with the First Amendment—that same person is typically within their rights if they proclaim from a soapbox on the quad, without intent to produce imminent action and directed at no individual in particular, “Religion is the scourge of humanity. We will never be free until we break the shackles of superstition. Kill all the Jews. Kill all the Christians. Kill all the Muslims. Kill them all!” That speech, by my lights, is offensive and vile. But absent harassment, threat, or imminent incitement, offense and even vileness are not sufficient to merit sanction. The First Amendment does not permit the punishment of advocacy, even of vile ideas. This is why context matters. If the First Amendment is our guide, the line between calls for genocide that are allowed on campus and calls for genocide that aren’t allowed on campus lies somewhere in between these two cases.
Beyond general free speech considerations, the university presidents were right to be reticent for another reason. Simply saying that university policy disallows all calls for genocide would have plunged the presidents into an interpretive morass. Who gets to decide whether a particular speech act amounts to a call for genocide? Some cases will be easy enough—for example, “Kill all the Jews!” or “Kill all the Palestinians!” But what about cases—including those widely condemned in recent weeks—where the meaning of speech is far less plain, far more open to debate? A university that issues a blanket restriction on speech in support of genocide will need to take institutional positions on deeply contested questions that are properly the topic of debate in an academic community that values independent thought and rigorous scrutiny of ideas.
That’s a lot to explain in a Congressional hearing. I’m not sure Representative Stefanik would have listened patiently to an answer along these lines. Indeed, my guess is her question was a trap. But did the university presidents have to walk right into it, or might they have said something truthful but a bit more effective?
What is truthful in this case? I take the official policies of each of these institutions to be something like this. Because the pursuit of knowledge requires robust debate and contestation of ideas, the universities protect broad rights to free expression, constrained by some rules pertaining to harassment and the like. Harvard forbids “personal harassment of such a character as to amount to grave disrespect for the dignity of others.” The University of Pennsylvania advises that “while as a private institution we are not subject to the First Amendment, the University’s policies have embraced these values. Universities . . . cannot legitimately punish members . . . who profess bigoted and other hateful views.” At MIT free expression is protected other than “direct threats, harassment, plagiarism, or other speech that falls outside the boundaries of the First Amendment.”
While the universities’ policies vary a bit, in the event, each president gave more or less the same response to Representative Stefanik: some version of “it depends on context” and “if it crosses into conduct that is pervasive, severe, and targeted at individuals.” You see what they are getting at. The student following me around campus saying “kill all the Jews” is engaged in harassment targeted at an individual; that’s not allowed. The student in the quad railing against religion is advocating a view not harassing an individual; that is allowed. Representative Stefanik rejected the nuance. For her, the answer to the question “does not depend on the context.” Much of the commentariat agreed.
Wherever one comes down on context dependence, it is hard not to conclude that the presidents failed to communicate their point of view effectively. I think they would have done better by focusing on principle, rather than context. They might have said:
I deeply regret that members of my university community have caused pain and fear through their speech. I believe that we should speak civilly and respectfully to one another, especially when we strongly disagree, and that we should teach our students to do likewise. That said, universities are the social institutions in which the free exchange of ideas is most important. As such, we aim to minimize restrictions on speech—it is not our job to tell our students what to say or think, it is our job to help them learn to think and speak for themselves. For that reason, if a statement is legal under the First Amendment, it is allowed on campus. I am no more of an expert than you, congresswoman, about when calls for genocide are protected by the First Amendment. But the yes or no answer to your question is: if it is allowed by the Constitution, it is allowed on my campus.
That answer, which is by law the policy at public universities, contains all the context-dependence a private university needs: First Amendment jurisprudence, while raising a high bar, certainly has room for restricting targeted, severe, and pervasive harassment. Anyone who rejects both this underlying principle and a culture of safe spaces and speech restrictions does so, it seems to me, only upon pain of inconsistency.
Had the presidents given my answer, they likely would have faced some uncomfortable follow-up questions, especially about hypocrisy. Because, official policies notwithstanding, there is a reasonable case to be made that practices on these campuses are not consistently guided by a commitment to free expression. Indeed, arguably, the dominant ideology on campus for the past generation has been precisely the opposite.
There are two senses in which this is true. First, on each president’s campus, speech has at times been administratively restricted. For example, at the University of Pennsylvania, the dean of the law school sought sanctions against a faculty member because she “repeatedly made derogatory public statements about the characteristics, attitudes, and abilities of a majority of those who study, teach, and work here.” At Harvard, students had their admissions rescinded for “sending messages that contained offensive messages and graphics,” a faculty member’s course on policing was canceled in response to student protests over its content, and a human rights leader appears to have been blocked from a fellowship due to his criticisms of Israel. And at MIT a professor from the University of Chicago was disinvited from giving a named lecture as a result of his publicly stated opinions regarding affirmative action in college admissions.
While these examples contradict the claim that these universities’ free speech policies are consistently guided by the First Amendment, it is also important to note that such administrative actions are newsworthy at least in part because they are relatively rare. People say offensive or controversial things on university campuses on a pretty regular basis without sanction. So to what extent is the charge of hypocrisy fair?
It is a little hard to know. The relative infrequency of official sanctions for offensive speech reflects two features of life on campus. The first is free expression policies actually being followed: people speaking offensively and not being punished. The second is self-censorship: people choosing not to express views that they predict would give offense. In thinking about the charge of hypocrisy, it is important both to distinguish these two cases and to consider whether all self-censorship reflects a failure to protect free expression.
Not all self-censorship results from a fear of sanction. Indeed, choosing to sometimes avoid giving offense even though one is permitted to do so is a building block of civil discourse. There is an important distinction, then, between what we might think of as free self-censorship—not saying something out of a desire to be civil, considerate, or convincing—and coerced self-censorship—not saying something because one believes one will be punished if one does.
Since we don’t observe speech that is self-censored, it is difficult to assess how much self-censorship is free versus coerced. And this makes it hard to have a meeting of the minds with respect to the charge of hypocrisy. University critics are likely to assume most self-censorship is coerced. University defenders are likely to assert most is free. And there isn’t much by way of evidence that can be brought to bear other than anecdote and personal experience.
The issue is made even more complicated by the fact that there is a gray area between free and coerced self-censorship—self-censorship that is undertaken freely, but in response to a censorious culture dense with institutional orthodoxies. For instance, on many college campuses, debate about affirmative action has not been as robust as I suspect the underlying social disagreements merit. I don’t think this is primarily because affirmative action skeptics believe they would be directly administratively sanctioned for expressing their views. Instead, it is because they believe they would suffer a variety of unpleasant social or communal consequences for doing so. These consequences are not administrative, so the First Amendment approach is formally intact—this is free self-censorship. But, when considered against the rationale for free expression on campus—the importance of exchanging, contesting, and scrutinizing ideas in pursuit of knowledge and truth—the outcome does not seem good.
The same could be said of the avoidance of debates over Israel, abortion, DEI principles, and much else. For instance, consider the case of Carole Hooven, who left a teaching position at Harvard in the aftermath of publicly arguing that biological sex is best conceptualized as binary, even if gender is not. Her remarks were criticized as transphobic, harmful, and dangerous, initially by a graduate student serving as Director of the Diversity and Inclusion Task Force for the department of Human Evolutionary Biology. Hooven was not fired; she left of her own accord, but describes feeling “pushed out” by lack of institutional and collegial support “in response to public attacks on my character.” Such events can chill debate, resulting in the kind of self-censorship—undertaken freely, but driven by fear of intolerance of deviations from institutional or communal orthodoxies—that is, I believe, the main feature of contemporary life on campus that bothers many critics and underpins the charge of hypocrisy.
While intolerance is a matter of culture, policy and administrative actions play a role in creating the culture. For instance, the inclination of many university leaders to make proclamations on political and social events of the day—even when those events have little to no direct link to the university’s research and teaching mission—can have the effect of establishing or reifying orthodoxies. And this contributes to the perception of hypocrisy. When university leaders who enthusiastically made statements about Black Lives Matter, knowing that such statements would likely discourage free expression of dissenting views on related issues, later assert a deep commitment to free expression concerning genocide of the Jews, they appear to be cynically picking and choosing their principles to suit short-run exigencies.
In this sense, university leaders are lying in a bed of their own making. I suspect at this point many wish they could give something like my First Amendment answer but cannot without facing charges of hypocrisy. One important question, then, is how they might get from here to there.
I think it can (and should) be done, but the journey will be difficult. First, university leaders will have to curb the instinct to administratively sanction community members who give offense. Second, and substantially more difficult, universities will need to build a culture of openness and tolerance for dissent. This would require jettisoning much of the conceptual architecture that has shaped campus culture for the past generation—eliding the distinction between offense and harm; embracing the notion that to be uncomfortable is to be unsafe; representing students as fragile and in need of constant protection; and yielding to the inclination to take institutional positions that tell their communities what to think, rather than encouraging them to think for themselves. Third, to address the charge of hypocrisy head on, university leaders will need to frankly and publicly articulate a new set of principles, acknowledge their institution’s past deviations from those principles, and commit to a change of course. This would be painful.
While being grilled in a congressional hearing, university leaders seem to find free expression attractive. But I’m not sure how deep the commitment runs. Indeed, once out of the hearing room, the president of Harvard and the now former president of Penn both backtracked, embracing the ideology of safe spaces that underlies both Representative Stefanik’s demands for sanctioning anti-Semitic speech and the progressive program of speech restrictions that has dominated campus life in recent years. Maybe Stefanik and the progressives are correct and free expression is a mistake. We have a choice between two non-hypocritical paths: one more consistently restrictive, one more consistently tolerant. Which is right?
It’s not an easy question. I don’t want to walk through the quads and hear members of my university community calling for genocide against the Jews, spewing racial epithets, dehumanizing Palestinians, questioning trans people’s right to exist, or asserting that Republicans are Nazis. Such speech is noxious. It creates the risk that someone listening will be spurred to an actual act of violence; it may deter members of certain groups from joining the university community in the first place; and it may make life deeply uncomfortable even for those who do join the community.
But these considerations in themselves don’t imply that universities should ban such speech. At their best, universities are intellectual communities whose members collectively reason about, analyze, and debate our most important, vexing, and contentious questions in pursuit of truth. Moreover, an essential part of our teaching mission is to help students learn to better understand one another and the world by civilly engaging in these activities, even when they deeply disagree. As such, there are at least two reasons we should choose the path of toleration: one about incentives and the other about principle.
Start with incentives. University leaders do not have an easy job. They are buffeted on every side by competing pressures. In the wake of the ongoing war in Gaza, we have watched university presidents swing back and forth in their public statements and campus policies under pressure from students, faculty, staff, donors, alumni, trustees, and Congress. And this is just the latest such incident.
Do I believe it would be bad to hear people calling for genocide on campus? Yes. But what do I predict will happen if university policy rules out calls for genocide across the board? University presidents will be pressured to ban any speech or disallow any speaker deemed sympathetic to intifada or the “river to the sea” slogan on the grounds that these ideas amount to calls for genocide. And university presidents will be pressured to ban any speech or disallow any speaker sympathetic to Israeli military policy on the grounds that Israel is engaged in a genocide against the Palestinians. Many university presidents would accede to such demands. But debates about when and in what form political resistance or the exercise of state power are morally acceptable or practically effective absolutely belong on university campuses. We cannot fulfill our function as intellectual or learning communities dedicated to confronting the most difficult questions if we cannot have these discussions.
The lesson extends beyond genocide to any case of offense involving contestable interpretations. The core mission of a university is threatened by restricting the contestation of ideas. And so an analysis that takes seriously the pressure university leaders will inevitably face argues against giving them robust powers to control speech.
With respect to principle, the case is even more straightforward. Universities are places for the exchange of ideas, and free expression is constitutive of that mission. Moreover, free expression is essential to the truth-seeking enterprise. The pursuit of truth requires an openness to the possibility that one’s beliefs, no matter how deeply held, might be wrong. Open discussion, debate, and contestation are the best way to weed out bad ideas and elevate good ones. If we are to pursue truth together as a community, we must be at liberty to speak freely with one another. This is also why we reject arguments from authority. University leaders are no less fallible than the rest of us. It is not their role to tell members of the university community what to think. It is their role to create an intellectual environment in which students and scholars can think for themselves, together.
There are, of course, arguments against free expression that deserve consideration. Consider three. First, some universities may prioritize values other than creating an intellectual community of truth-seekers—for example, creating a community of shared religious belief—that are in tension with free expression. Second, offensive speech may lead to violent action. Third, students and others from certain backgrounds or points of view may feel unwelcome at a university where speech offensive to them is tolerated and where leaders, even if for principled reasons, decline to officially renounce such speech.
Regarding the first objection, there are indeed universities that are organized around visions at odds with the one I have outlined. It is true that, even if speech is more limited on these campuses, members of these communities may have ample opportunity to debate and test their ideas elsewhere—by engaging in dialogue with members of other universities, say, or by taking to the pages of academic journals, magazines, and newspapers. But it is hard to match the intellectual rigor of interacting day in and day out with a community dedicated to truth-seeking through research and teaching. And so, to the extent that truth-seeking is universities’ primary role in society, it seems to me that organizational arrangements motivated by other values should be the exception rather than the rule.
Regarding the second objection, I think we have to fall back on standard arguments. Allowing free expression may indeed, from time to time, lead to acts of violence. Under the law, the mere possibility that speech might lead to something terrible does not suffice to restrict it: we need to show imminence and likelihood. The same should hold at universities, where the free exchange of ideas is so central. Of course freedom on campus has a price, as does freedom everywhere. But that doesn’t make permitting free expression a mistake. After all, restricting speech comes with risks too. How many lives are saved or enriched by discoveries that are only possible in an environment where ideas can be freely exchanged and contested? How often are restrictive speech rules used to silence the powerless or vulnerable? And what of the fundamental cultural value of institutions where ideas, learning, and pursuit of knowledge are paramount? We should not allow the fear of bad behavior to curtail our fundamental liberties.
Regarding the third objection, I think we may overstate the case. To be sure, in the current environment, students from many different identity groups, religious persuasions, and political ideologies express that they feel unsafe on campuses that tolerate offensive speech. But that feeling of unsafety is at least in part a symptom of a campus culture in need of reform. A long intellectual tradition draws a distinction between offense, such as hearing speech one finds noxious, and harm, such as suffering physical violence. In recent years, this distinction has broken down on campus; it has become a commonplace that to be offended is to be harmed. And this, in turn, has become an argument against free expression: just as we do not tolerate physical violence, we ought not tolerate speech that gives offense. But I would suggest that, while the feeling of harm students experience when offended is real, it is also in part constructed by this framing. As such, we might hope that a full-throated and principled defense of free expression by university leaders—insisting on the offense-harm distinction—would help construct a different culture in which students practice and feel greater emotional resilience. If that cultural transformation can be achieved, we might find that a policy of free expression, coupled with a renewed commitment to civil discourse, can actually empower rather than alienate members of marginalized groups.
Ultimately, universities should believe in the importance of their mission—to research, teach, and deliberate in pursuit of knowledge and truth. Policies that ensure free expression and that build a culture eschewing orthodoxies and tolerating dissent are essential to that mission. Creating such an environment will put universities in the strongest possible position to proudly defend themselves against critics who charge hypocrisy. Getting there will be painful. But universities and their leaders should be willing to bear a fair bit of pain in the short run to safeguard their long-run ability to carry out their essential work.
Source: bostonreview.net
Author: Ethan Bueno de Mesquita
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