As the Israel-Hamas war enters its ninth week, the fighting and dying continue in Gaza, where an estimated 18,000 Palestinians have been killed. The war, triggered by Hamas’ Oct. 7 terrorist attack that killed some 1,200 Israelis and abducted 240 hostages, has set off protests and the rise of both anti-Semitism and Islamophobia worldwide.
In the U.S., university campuses have been at the center of protests and several incidents of violence. Rising tensions have caused some Jewish students and others who support Palestine to feel unsafe, with both sides criticizing university administrators’ response.
At a Dec. 5 congressional House hearing on anti-Semitism on college campuses, New York Republican Rep. Elise Stefanik asked the presidents of Harvard, MIT and the University of Pennsylvania if calling for the genocide of Jews violated their campuses’ codes of conduct. The three university presidents’ legalistic and evasive answers produced a firestorm of criticism leading to the resignation of UPenn President Liz Magill, while Harvard University and MIT’s boards supported their presidents. Between The Lines’ Scott Harris spoke with Will Creeley, legal director with the Foundation for Individual Rights and Expression (or FIRE), who talks about the need to protect free speech amid rising tensions on campus over the Israel-Hamas war.
WILL CREELEY: Tensions are very high on campus. We’ve seen violence at some campuses. We’ve seen true threats of violence. We’ve seen a lot of protected protest as well.
But needless to say, tensions are high. So the House Committee on Education and Workforce called this hearing. The presidents of MIT, Penn and Harvard were asked a series of questions about their response to anti-Semitism on campus and the question in particular that sparked the outrage and has now resulted, as you describe — calls for the resignation of the MIT and Harvard presidents and the resignation of Louis McGill, president of Penn — was whether calls for genocide at these private universities are prohibited by their student code of conduct.
And the presidents provided legally correct answers that it depends. The context does matter. But they failed to acknowledge, I think, the real fear and tension that has gripped their campuses. And frankly, they sounded too much like they had been coached by lawyers to say the right thing.
The other problem here, Scott, is that these schools have had checkered records on free speech. You know, I’ve been doing this work, as I say, for 17 years. And Harvard, Penn and M.I.T., to varying degrees, have really had a tough time being consistent in their defense of free speech. So it struck folks as odd that all of a sudden of these presidents had found free speech scruples under the bright lights of a congressional hearing when previously there had been actions that would have violated those promises, and they didn’t seem to have any problem with those.
So I think it was a kind of a classic trap, and they did not answer it in a politically satisfactory way, even if they were legally correct. I also should note, just for your listeners, it’s always something to be wary of when you have bipartisan condemnation of university leadership. I mean, you know, again, they have bad records here, but what’s happening now has the possibility of being worse.
The governor of New York, Kathy Hochul, and many members of Congress are now writing institutions to ask if they are prohibiting, quote unquote, calls for genocide. And the thing is, broadly speaking, absent more, some quote calls for genocide unquote, will be protected by the First Amendment. So we’re in a dangerous moment for free speech here when the government, actor and elected officials asking you for to answer a question and there appears to be only one right answer, you should get nervous.
SCOTT HARRIS: Well, could you comment on legislation that’s moving through the House of Representatives? I believe it’s Amendment 114 to H.R. 5894 that takes away funding from any higher education institution that supports an event where anti-Semitism takes place. Pretty vague stuff, but maybe briefly, you can talk about your response to this type of legislation.
WILL CREELEY: We’ve pushed back there. We think that is indeed unconstitutional and it would require universities to prohibit, again, protected political speech or risk losing federal funding that is at odds with the mission of our universities to service the marketplace of ideas. You know, universities uniquely in our society should be where you can challenge the unchallengeable and you can have real robust debates, including about arguments regarding genocide or anti-Semitism or the war in Israel, in Gaza or anywhere else.
I mean, those are the kinds of debates and discussions we need our future leaders to be able to have without fear of punishment. And, you know, we know how to respond to speech that loses First Amendment protection through threats, intimidation, incitement and discriminatory harassment. Those have carefully crafted and narrow legal definitions. So in this country, we’ve chosen to ensure that political speech and debate can be at its freest.
And again, that’s nowhere more important than our colleges and universities. So legislation like this would chill speech on campus to the detriment of us all. You can’t censor your way to understanding. We can only do that via dialog, and that’s what the First Amendment is designed to protect. And that’s what free speech means on college campuses.
For more information, visit the Foundation for Individual Rights and Expression, (FIRE) at thefire.org.
Listen to Scott Harris’ in-depth interview with Will Creeley (15:32) and see more articles and opinion pieces in the Related Links section of this page.
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