The Opportunity Presented by the University Presidents' Testimony and Resulting Backlash

A recent story in the New York Times places some of the responsibility for the failure of the presidents of Harvard, M.I.T., and the University of Pennsylvania to unequivocally denounce calls for genocide against Jews on the law firm of WilmerHale, which played a key role in preparing Harvard President Claudine Gay and now-former Penn President Elizabeth Magill for their Congressional testimony last week. "WilmerHale also had a meeting with M.I.T.’s president, Sally Kornbluth," according to the news report. The Times story implies (and quotes Berkeley law professor Steven Solomon for the proposition that) the WilmerHale lawyers prepped the university presidents to give the sorts of answers that would serve them reasonably well in a courtroom but poorly in the court of public opinion.

That suggestion, if true, is at least somewhat perplexing. After all, the reason that the universities all hired the same law firm is that WilmerHale has substantial expertise in assisting witnesses called to testify before Congress. Surely an important element of that expertise is familiarity with the political nature of Congressional hearings. A well prepared witness must be attentive to both legal and political consequences.

Because I was not privy to the confidential meetings between the university presidents and the WilmerHale lawyers, I am not well positioned to evaluate the fairness of the blame-the-lawyers account. But I also want to resist the framing in the Times story and some of the other coverage of this incident as pitting legalisms against basic human decency. To my mind, the problem with the answers that the university presidents gave was not so much that they were legalistic but that they misapplied the law. They misapprehended the relation between general principles of free speech applicable to the government as regulator and principles of free speech as they apply to an academic community.

I shall come to that distinction in a moment, but first I want to agree with Michelle Goldberg's NY Times column last week that was aptly titled At a Hearing on Israel, University Presidents Walked Into a Trap. Right-wing politicians and pundits have spent decades denouncing America's colleges and universities as sites of left-wing orthodoxy in which conservative views are suppressed and their expositors canceled. Recent attacks on "wokeness" are only the current incarnation of what, in the 1990s was denounced as a culture of political correctness. The point of last week's hearing was to expose America's elite institutions of higher education as hypocritical, including by suppressing any evidence of even-handedness by university administrators. One moment in the hearing that did not go viral is particularly telling. Here's Goldberg's account:

Amid the uproar over the campus antisemitism hearing, many have claimed that if [Congresswoman Elise] Stefanik had been asking about attacks on any other ethnic group, there would have been no waffling. But Stefanik did ask about another group. Her first question to Gay was, “A Harvard student calling for the mass murder of African Americans is not protected free speech at Harvard, correct?” Gay started to respond, “Our commitment to free speech,” but Stefanik, perhaps realizing she wasn’t going to get the answer she wanted, cut her off and changed tack.

Goldberg goes on to say that "at many universities, the defense of free speech has been inconsistent. Some elite schools now cloaking themselves in the mantle of the First Amendment to ward off charges of coddling antisemites have, in the past, privileged community sensitivity over unbridled expression." There is some truth to that charge, although perhaps less than those of my readers who do not work in academia might assume. Charges of woke over-sensitivity have a War-on-Christmas character: they tend to recycle the same handful of incidents in which a right-wing provocateur comes to campus and intentionally elicits an intemperate response from students and occasionally from faculty and staff. Some such incidents are indeed troubling, but they do not reflect the overall climate on campus.

Given that background, I suspect that the Harvard, M.I.T., and Penn presidents came to Congress thinking that their least risky option would be to embrace free speech both for the staunchest defenders and critics of Israel. I don't disagree with that approach in principle. I do think they misapplied it.

The university presidents invoked distinctions that definitely matter to the question whether the government can proscribe speech or even subject speakers to civil liability. Penn's Magill distinguished between speech and conduct. She also invoked terms relevant to the legal definition of harassment: whether threatening or otherwise harmful language is "severe [and/or] pervasive." Harvard's Gay distinguished between speech about a group and threats targeted at an individual. Perhaps alluding to cases applying the Supreme Court's test for proscribable incitement, she also highlighted the importance of context.

Was any of that relevant? In a recent blog post, Professor Eugene Volokh observes: "There's no 'advocacy of genocide' exception to the First Amendment, or to the contractual promises of student free speech that many private universities rightly implement." He goes on to offer reasons why, in his view, statements in support of genocide or the deliberate killing of civilians should be protected free speech for members of an academic community, giving both current and historical examples. Without engaging directly with his examples, I want to question Professor Volokh's apparent premise that either the First Amendment or "contractual promises of free speech" obligate universities to the same standards in their dealings with students (and faculty) that apply to governments in their regulatory capacity.

Many private colleges and universities that are not bound by the First Amendment because they are not state actors nonetheless voluntarily undertake to respect principles of free speech because they rightly regard it--along with academic freedom--as central to their teaching and scholarly mission. Cornell's policy (with which I wholeheartedly agree) is fairly typical. However, in endorsing free speech, private colleges and universities need not--and in my view, should not--thereby necessarily incorporate by reference every jot and tittle of the courts' understanding of the First Amendment. A university could conclude that in various respects the case law undervalues, overvalues, or simply misapplies free speech. So long as the college or university does not expressly promise that its implementation of free speech will exactly reflect First Amendment case law, it does not breach any contractual promise by giving narrower protection.

Moreover, even public universities to which the First Amendment (as incorporated by the Fourteenth) applies of its own force are not bound by the Constitution in exactly the same way that it restricts the government as regulator in the public square. Just as the employee speech doctrine permits the government as employer to impose some restrictions on employee speech that the government as regulator may not impose on the general public, so what I would call the "public university speech doctrine" permits (or at least should permit) public universities to impose limits on some kinds of expression that the government as general-purpose regulator may not proscribe.

As I explained on this blog a little over six years ago, in some respects, speech on campus deserves greater protection than the government affords speech in other contexts. For example, academic freedom permits scholars to continue in their jobs in circumstances in which employers--including government employers--would be permitted to fire employees in other settings. Even if academic freedom at public universities is not strictly entailed by the First Amendment, such freedom is rightly seen as part of a university's commitment to the values underlying the First Amendment.

However, as I explained in that same blog post in 2017, in other respects, speech on campus (including at public universities) can be subjected to greater restriction than the restrictions that government as regulator may impose on the general public. In the 2017 post, I made the point by emphasizing that college campuses serve in part as the home of students. Here I would expand the point to say that they are voluntary communities in which universities may rightly demand a certain minimum show of respect for the safety and emotional wellbeing of other community members. Calling for genocide against any group whose members are part of a university community blatantly disregards that demand and may accordingly be the basis for sanctions.

I do not know whether the campus codes at Harvard, M.I.T., or Penn impose such heightened duties of civility and respect. It's possible that they do not--but that in the glare of the spotlight it did not occur to any of the university presidents under fire to say something like this: I believe our campus code would protect even as odious a statement as a call for genocide as permissible freedom of speech if it didn't constitute a true threat or harassment; however, if so, the campus code should be changed to make clear that some speech that the First Amendment protects from government censorship as a general matter violates a university community member's obligation to respect the safety and emotional wellbeing of every other community member.

Of course, it is easy for me or anyone else, after the fact and in l'esprit de l'escalier, to proclaim what the university presidents should have said. The point is not to say that I or someone else would have done better. Rather, I mean to emphasize the substantive problem that arises out of conflating the First Amendment case law as a limit on government as regulator with free speech principles as they apply to the particular institutional environment of a university.