It only took a day for the University of Pennsylvania’s president Liz Magill to threaten to abandon her university’s commitment — already hanging by a thread — to academic freedom and free expression after her much-scrutinized performance in front of a congressional committee on Tuesday.
“For decades under multiple Penn presidents and consistent with most universities, Penn’s policies have been guided by the Constitution and the law,” she said, teeing up the inevitable “but”: “In today’s world, where we are seeing signs of hate proliferating across our campus and our world in a way not seen in years, these policies need to be clarified and evaluated.”
Many of those pressuring universities to punish anti-Semitic speech are rightly calling out these institutions for having double standards — policing microaggressions while letting enthusiastic support for Hamas go unpunished. They’ve correctly identified the problem, but are pursuing the wrong solution. The right solution is to eliminate all speech codes and protect free speech consistently — not to censor consistently.
Nonetheless, Magill has chosen to open the door to more censorship — and it’s a decision that will reverberate across our nation’s campuses and have consequences for the very Jewish students and faculty she rightly wants to protect in this turbulent moment. While it may not be intuitive at first blush, there are good reasons why both the First Amendment and most colleges’ free speech promises generally protect even “calls for genocide.”
The First Amendment protects abstract advocacy of violence, including calls for genocide
When Magill and the presidents of Harvard and the Massachusetts Insitute of Technology said that whether calls for genocide are punishable depends on “context” before Congress on Tuesday, they were correct.
Harvard, Penn, and MIT are private institutions, but they commit — on paper, though often not in practice — to protecting free speech, so their students and faculty reasonably expect to benefit from First Amendment standards.
And the First Amendment protects advocacy of violence, so long as it doesn’t cross the line into unprotected conduct or speech like incitement or true threats. These narrow, well-defined exceptions protect individuals from immediate threats to their physical safety, without risking a widespread crackdown on dissenting or unpopular speech.
The Supreme Court defined incitement in the landmark case of Brandenburg v. Ohio. The justices held that the First Amendment protected speech at a Ku Klux Klan rally — complete with a burning cross — where armed Klansmen used slurs against black and Jewish people, called for “revengeance” if the government “continues to suppress the white, Caucasian race,” and announced a march on Congress on the Fourth of July.
The Court made clear that speech promoting unlawful action loses First Amendment protection only if it is directed to and likely to produce imminent lawless action. That’s a necessarily high bar, designed to protect a great deal of charged political expression by capturing only that speech that is all but inseparable from the unlawful action that directly follows it. Quoting an earlier decision, the Court reiterated that “mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”
The First Amendment also makes an exception for true threats — statements that communicate to another person or group a serious expression of intent to cause them unlawful physical harm.
Advocacy of genocide or violence remains protected speech, unless it meets one of these exceptions in the particular circumstances in which it’s uttered. So, the First Amendment would generally protect, for example, students peacefully marching across the quad chanting “From the river to the sea, Palestine will be free,” even if the chant were interpreted as supporting the ethnic cleansing or genocide of Israelis.
But as FIRE’s Legal Director Will Creeley recently explained, if the slogan were “directed at a specific Jewish student by a student or group moving threateningly towards him, during a protest that has turned violent and unstable, it may arguably constitute a true threat.” Moreover, “a campus speaker’s exhortations to a willing audience to attack a passerby might lawfully face punishment as incitement.”
What about harassment?
Whether a call for genocide amounts to harassment also depends on context. Harassment is a pattern of unwanted behavior targeted at specific individuals, which may or may not include speech. Under the Supreme Court’s standard for discriminatory harassment in the educational context, the conduct must be targeted, unwelcome, and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The Department of Education has emphasized that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”
The tendency to want to make exceptions for what’s allowed to be said is all too human — particularly when it involves humanity’s worst impulses.
But to be clear: Calling for genocide or violence could rise to the level of harassment. For example, if students repeatedly gathered outside a Jewish student’s dorm room and loudly called for Israel to be wiped off the map, that would almost certainly satisfy the Supreme Court’s standard. The issue is not so much the content of the speech — it’s the targeted, extreme, repetitive, unwanted nature of it, which crosses the line into harassing conduct.
A ‘genocide’ exception to the First Amendment would have unintended consequences for free speech
But why protect even calls for genocide?
It’s completely understandable for people to pose this question. After all, the vast majority of us agree that genocide is evil and horrific. But most everyone also agrees in the abstract that “hate” is bad. While a ban on advocating genocide or mass killing may be somewhat more specific than a general ban on “hate speech,” it ultimately suffers from the same problems of vagueness and subjectivity.
As we’ve seen in the debate over the Israel-Hamas war, people can’t even agree on what constitutes genocide or advocacy of genocide. (It’s thankfully rare for someone to say explicitly, “We should murder all the Jews.”) When questioning the college presidents, Rep. Elise Stefanik equated calls for “intifada” with advocating genocide, but others say the term merely refers to a mass uprising seeking liberation from Israel. Meanwhile, many claim Israel’s invasion of Gaza, which has killed of thousands of civilians, is a genocide, while Israel’s supporters call it self-defense.
The right to engage in any of this speech would be subject to the whims and biases of whoever happens to be enforcing the ban on “genocide” advocacy. And the result would be stunted debate and discussion about the Israel-Hamas war and other highly consequential geopolitical conflicts.
The tendency to want to make exceptions for what’s allowed to be said is all too human — particularly when it involves humanity’s worst impulses. But trusting government officials and campus bureaucrats to police speech fairly and responsibly is naive, and will likely only boomerang on those seeking censorship’s illusory protections.
As FIRE wrote in reaction to Magill’s statement, does anyone “honestly believe this rule won’t be weaponized to ban an Israeli cabinet official from speaking at Penn? An Israeli Defense Force soldier?”
To ask the question is to answer it, particularly when pro-Palestinian protesters and activists are advancing the same argument: Israel’s actions in Gaza amount to genocide, too.
Expand liberty, not censorship
Endorsement of an absolute ban on calls for genocide ultimately rests on the flawed idea that we should ban speech that is morally repugnant, makes people feel unsafe, or might lead to bad outcomes at some unknown future time.
Those are the same fuzzy, subjective justifications used to restrict expression about race, gender, abortion, and many other contentious social and political topics — the speech is “offensive” or “harmful.” Anyone rightfully concerned by such censorship should not want to legitimize it by enshrining its underlying rationale in the law or university speech codes. Doing so will open the door to even more speech restrictions. In fact, the Wharton Board of Advisors, which oversees Penn’s prominent business school, has already proposed a resolution that would prohibit not just expression that “celebrate[s] murder or genocide” but also “hate speech.”
Securing human rights and a less hate-filled world are goals of utmost importance. But empowering government officials and campus bureaucrats to censor speech won’t get us any closer to achieving them — it will only result in more repression.
On today's free speech news roundup, we discuss the recent NetChoice oral argument, Taylor Swift, doxxing, October 7 fallout on campus, and Satan in Iowa.