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College presidents reveal three surprise truths about free speech and antisemitism

Jason Willick @ Bezos Washington Post

The episode has the makings of a turning point in the culture wars over higher education. But whether it’s constructive or destructive depends on what lessons are drawn. To that end, here are three:

First, justified concern about American campus radicalism cannot obscure the fact that the presidents were objectively right on the free-speech merits. Universities that claim to be forums for free inquiry should not promise Congress that they will punish students or faculty for constitutionally protected speech. Private universities are not bound legally by the First Amendment, but most have committed themselves to abiding by its spirit and meaning (even though they often don’t; more on that below).

Like racist, sexist, homophobic or anti-Muslim speech, antisemitic speech is generally constitutionally protected. To legally constitute harassment, speech must be so pervasive that it interferes with someone’s ability to access education — think of a mob that follows someone around campus or blocks a building. An isolated outburst, social media post or protest chant doesn’t meet that threshold.

Even speech endorsing violence in the abstract is protected. This might seem surprising, but it’s well-established law. Speech crosses into incitement only if it is both intended to cause violence and likely to cause violence in the imminent future. As the Supreme Court affirmed in 1969’s Brandenburg v. Ohio, advocating “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.”

Commentary.

FIRE:

FIRE statement on Gov. Hochul’s letter to New York State colleges and universities

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.