Universities Are Drawing The Wrong Lessons From The Capitol Hill Hearing

The real solution is less—not more—censorship.

University presidents Claudine Gay, Liz Magill, and Sally Kornbluth at congressional hearing, December 5, 2023. (Photo by Kevin Dietsch/Getty Images.)

The holiday break cannot come soon enough for some of America’s elite universities.

The fallout from the fateful testimony of three top university presidents on Capitol Hill continues unabated. Liz Magill, the president of Penn, has announced her resignation, while Claudine Gay, Harvard’s president, has barely survived, and MIT president Sally Kornbluth is under fire from alumni.

The backlash came after Republican representative Elise Stefanik asked each president whether calls for the genocide of Jewish people would violate standing policies at their institutions. The three presidents represented institutions that are private, and thus not bound by the First Amendment, but that still incorporate First Amendment-like protections into their policies.

The three presidents responded that whether calls for genocide are protected by the First Amendment principles underlying their institutions’ policies “depends on the context.” Their answers were technically correct but drew outrage for apparent double-standards, as their universities have track records of cracking down on protected expression on other incendiary topics while seeming to single out anti-Semitic speech for protection under their policies.

Magill made a difficult situation worse by releasing a video after the congressional hearing in which she vowed to take a “serious and careful look” at Penn’s policies regarding expression, promising an overhaul of speech standards.

The implication of Magill’s backtracking was stark. Tearing down Penn’s—or any private institution’s—free speech policies puts every student and faculty member’s free speech rights in jeopardy. Simply put, abandoning free speech principles will mean censorship all the way down.

It’s a reminder of the oft-quoted moment from Robert Bolt’s A Man for All Seasons about giving even the devil the benefit of the law. One character advocates for “cut[ting] down every law in England” to defeat the devil. Sir Thomas More, the play’s hero, asks, “And when the last law was down, and the Devil turned ‘round on you, where would you hide?”

The same question should be posed to would-be speech censors: when you’re done punishing others’ speech you disdain but want to advocate for your own causes, what rules will be left to protect you when others take offense to your speech?

This scenario is simple to envision. Take the example of whether calls for genocide of Jewish people, as Representative Stefanik’s questioning phrased it, are protected speech. Advocating for genocide could, if directed at a specific student or group of students based on their identity and accompanied by some other form of physical intimidation, rise to the “severe and pervasive” requirement of discriminatory harassment or to the level of a true threat.

Unless the speech meets these high thresholds, though, political expression, even expression deeply offensive to others, is where the protections of the First Amendment, or similar policies at private institutions, are at their “zenith.” There is no “advocacy for genocide” exception to the First Amendment. Moreover, the issue of whether certain slogans are calls for genocide is a matter of ongoing debate, as some pro-Palestinian activists view calls for, for instance, “Intifada,” as rallying points for Palestinian resistance.

If universities modified their policies to punish calls for genocide—as so many are now demanding—it is not difficult to see how this could be turned against pro-Israel speech. Critics of Israel’s operations in Gaza have alleged that the Israeli government’s actions constitute a genocide. By this logic, advocates of Israel’s military response could be accused of defending genocide themselves and would become subject to the same censorial policies that these elite institutions are looking to adopt. As Israeli and Palestinian activists cannot agree on what speech constitutes a call for “genocide,” such vague bans on speech will inevitably result in political decision-making, double standards, and viewpoint discrimination.

With universities facing existential questions about student and faculty speech, a video like Magill’s indicates that the schools are drawing all the wrong conclusions. “We can and we will get this right,” Magill said, indicating that inflammatory political rhetoric, like Stefanik’s hypothetical call for “genocide,” would not be allowed to stand. But the universities remain oblivious to the underlying issue—an illiberalism that has been growing on campus over the past decade and has been abetted by school administrations.

Since the rise of “cancel culture” around 2014, there has been a steady rise of self-censorship. 72% of conservative faculty—and 40% of liberals—fear losing their jobs for saying the wrong thing. According to a just-released study, one in ten students reported being punished or threatened with punishment for speech. And a Knight Foundation study finds that, every single year since 2016, students’ speech rights have, in the students’ estimation, become “less secure.”

It’s very likely no coincidence that the three institutions that struggled so conspicuously at the hearing—Harvard, Penn, and MIT—rank last, second-to-last, and 136th out of 248th, respectively, in the Foundation for Individual Rights and Expression’s overall rankings of the free speech environment on campuses. These schools have long been enforcing double standards—and their sudden adherence to sterling First Amendment principles amidst a flurry of anti-Semitism makes it seem as if their existing speech policies are, in fact, entirely reactive and opportunistic.

Take Brandeis University President Ronald Liebowitz’s announcement last month that the university was derecognizing the campus chapter of Students for Justice in Palestine because the group was spewing “hate,” while he also paid lip service in the same announcement to the importance of “higher education’s deep and enduring commitment to free speech.”

Without evidence that the campus chapter of SJP engaged in unprotected conduct, such as providing material support for terrorism, Brandeis cannot reconcile its derecognition of the group with its strong free speech promises. Universities do have to make a choice. They can either float with the political tide—at the moment, it’s the focus on anti-Semitic speech; soon, it will be something else—and devise new and arbitrary restrictions on speech; or they can recognize that the underlying cause of their trust problem is their wavering adherence to free speech and instead double-down on First Amendment principles.

At a moment when politicians are alarmingly eager to censor speech, we need our institutions of higher education to remember their core values. Tolerating speech you agree with is meaningless if you censor speech that you oppose. If administrators at some of the nation’s most storied institutions ignore this lesson and proceed with tearing down existing free speech protections, then students will have few places to turn when administrative censorship comes for them.

Graham Piro is a Program Officer at the Foundation for Individual Rights and Expression.

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