Yesterday, New York State Gov. Kathy Hochul sent a letter warning the presidents of colleges and universities in New York that failing to discipline students for “calling for the genocide of any group of people” would violate both state and federal law. The governor promised “aggressive enforcement action” against any institution failing to prohibit and punish such speech.
Gov. Hochul’s warning cannot be squared with the First Amendment.
Colleges and universities can and should punish “calls for genocide” when such speech falls into one of the narrowly defined categories of unprotected speech, including true threats, incitement, and discriminatory harassment. But broad, vague bans on “calls for genocide,” absent more, would result in the censorship of protected expression.
Gov. Hochul cannot command colleges and universities to violate the First Amendment.
And any such ban would be impossible to administer and would stifle political debate. “Genocide” can be used hyperbolically, figuratively, symbolically, or satirically, and even if meant literally, it’s a contested term. In fact, both sides of the Israel-Gaza conflict have accused each other of genocide. The governor does not specify, nor could she, how institutions are to resolve these competing claims.
Notably, the pressure on universities to ban “calls for genocide” generally does not arise from explicit calls to murder all the members of a specific ethnicity or religion, but chants of “intifada” and “from the river to the sea, Palestine will be free.” While some claim these slogans are effectively calls for genocide, others maintain they are merely expressions of support for Palestinian liberation from Israel. Meanwhile, supporting Israel’s war on Hamas is considered support for genocide by others.
Gov. Hochul cannot command colleges and universities to violate the First Amendment. Nor may she enforce state law to compel action against speech protected by the First Amendment.
In this fraught moment, colleges and universities must ensure student safety and well-being by taking action against violence, true threats, incitement, discriminatory harassment, and other unlawful activity. But they can and must do so without violating expressive rights. FIRE will be watching closely.