What are the boundaries of “free speech?” The presidents of Harvard, the University of Pennsylvania (Penn), and the Massachusetts Institute of Technology (MIT)—Claudine Gay, Elizabeth Magill, and Sally Kornbluth, respectively—have great difficulty answering that question.
On December 5, the House Committee on Education and the Workforce held a hearing titled, "Holding Campus Leaders Accountable and Confronting Antisemitism" in which Gay, Magill, and Kornbluth delivered prepared statements and then answered questions posed by both the Republican and Democratic members of the Committee. The proceedings took more than five hours. From the start, Gay, Magill, and Kornbluth had great difficulty in finding a border around “free speech” that would justify restrictions of antisemitic expression. But after much obfuscation, all three settled on the trope, “It is context dependent.” The question that elicited this answer was, “Does calling for the genocide of Jews violate [MIT’s, Penn’s, Harvard’s] code of conduct or rules regarding bullying or harassment? Yes or no?”
Their answers have been widely reported, discussed, and criticized. And Magill and Gay in the days following issued further statements aimed at modifying, or retracting, their answers to the Committee. I want to address the substance of this controversy, but first I’d like to put in one convenient place some of the key facts and sources. I do so because the controversy threatens to blur the facts, and I want to be sure we speak from the actual record.
Stefanik’s Questions; Kornbluth, Magill, and Gay’s Answers
The crucial moment in the five-plus hours of the Committee hearing came when Congresswoman Elise Stefanik (R–NY) asked each of the presidents the question noted above. The excerpted video of the interactions is on YouTube. The transcript, released by Stefanik’s office, is as follows:
Congresswoman Stefanik: Dr. Kornbluth, at MIT, does calling for the genocide of Jews violate MIT’s code of conduct or rules regarding bullying and harassment? Yes or no?
President Kornbluth: If targeted at individuals not making public statements.
Congresswoman Stefanik: Yes or no, calling for the genocide of Jews does not constitute bullying and harassment?
President Kornbluth: I have not heard calling for the genocide for Jews on our campus.
Congresswoman Stefanik: But you've heard chants for Intifada.
President Kornbluth: I've heard chants which can be antisemitic depending on the context when calling for the elimination of the Jewish people.
Congresswoman Stefanik: So those would not be, according to the MIT's code of conduct or rules.
President Kornbluth: That would be investigated as harassment if pervasive and severe.
Congresswoman Stefanik: Ms. Magill at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct? Yes or no?
President Magill: If the speech turns into conduct, it can be harassment. Yes.
Congresswoman Stefanik: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?
President Magill: If it is directed, and severe, pervasive, it is harassment.
Congresswoman Stefanik: So the answer is yes.
President Magill: It is a context dependent decision, Congresswoman.
Congresswoman Stefanik: It's a context dependent decision. That's your testimony today, calling for the genocide of Jews is depending upon the context, that is not bullying or harassment. This is the easiest question to answer. Yes, Ms. Magill. So is your testimony that you will not answer yes? Yes or no?
President Magill: If the speech becomes conduct. It can be harassment, yes.
Congresswoman Stefanik: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable. Ms. Magill, I'm gonna give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn's Code of Conduct when it comes to bullying and harassment? Yes or no?
President Magill: It can be harassment.
Congresswoman Stefanik: The answer is yes. And Dr. Gay at Harvard? Does calling for the genocide of Jews violate Harvard's rules of bullying and harassment? Yes or no?
President Gay: It can be depending on the context.
Congresswoman Stefanik: What's the context?
President Gay: Targeted at an individual targeted, as at an individual?
Congresswoman Stefanik: It's targeted at Jewish students, Jewish individuals. Do you understand your testimony is dehumanizing them? Do you understand that dehumanization is part of antisemitism? I will ask you one more time. Does calling for the genocide of Jews violate Harvard's rules of bullying and harassment? Yes or no?
President Gay: Antisemitic rhetoric when it crosses into conduct, that amounts to bullying, harassment, intimidation, that is actionable conduct, and we do take action.
Congresswoman Stefanik: So the answer is yes. That calling for the genocide of Jews violates Harvard Code of Conduct. Correct?
President Gay: Again, it depends on the context.
Congresswoman Stefanik: It does not depend on the context the answer is yes, and this is why you should resign. These are unacceptable answers across the board.
The video of the entire Committee proceedings that day is also available on YouTube. The transcripts of the opening statements of Chairwoman Virginia Foxx, Claudine Gay, Elizabeth Magill, and Sally Kornbluth are available here.
The statement by Gay backing off from her statements at the hearing is here. The statement by Magill backing off from her statements at the hearing is here. There have been calls for the resignation of both Gay and Magill. All this provides “context” for considering the current controversy over the boundaries, if any, for campus free speech.
NAS and Academic Freedom
The National Association of Scholars (NAS) in its mission statement speaks of our commitment to “standards of a liberal arts education that fosters intellectual freedom.” In numerous controversies over the years, NAS has supported faculty members who faced various forms of censure for what we argued were legitimate exercises of their academic freedom. In 2016, we issued a report, The Architecture of Intellectual Freedom, which drew careful distinctions among the terms academic freedom, intellectual freedom, and First Amendment freedom, as well as several other speech-related freedoms. We also examined ten “contexts” in which these freedoms operate, and five other “foundational principles” in higher education that bear on academic freedom. In 2018, we issued a study, Charting Academic Freedom: 103 years of Debate, which reviewed fourteen canonical statements on academic freedom through the lens of twenty-five categories, such as the original occasion for the statement, the grounds it gave for free speech, the threats it acknowledged, the identities of the persons protected.
Thus, NAS is not new to the subject, but we are one of perhaps two dozen or more organizations that have taken a strong interest in defining, protecting, and promoting academic freedom. Of these, the two best known are the American Association of University Professors (AAUP) and the Foundation for Individual Rights and Expression (FIRE). Perhaps the American Civil Liberties Union (ACLU) belongs in that company as well, though its involvement in higher education is secondary. I mean no slight to other, generally newer organizations that have joined this conversation. My point here is simply to acknowledge that while NAS has been examining, arguing, and debating these issues for nearly forty years, we have benefited from the views of other organizations that have examined many of the same cases and controversies.
A record of that can be found in the numerous books on academic freedom published in the last century. NAS’s library holds more than 150 volumes specifically focused on the topic, and we have a bibliography of about four hundred more. One could spend a life so devoted to reading about academic freedom as to miss the opportunity to see or experience it.
But presidents Gay, Magill, and Kornbluth might have been well-advised to spend at least a little time acquainting themselves with the topic.
Had they done so, they might have learned that respect for First Amendment freedom of speech and academic freedom are not the same thing. First Amendment freedom of speech provides that “Congress shall make no law … abridging freedom of speech, or of the press; or the right of the people peaceably to assemble ….” It does not prohibit Harvard, Penn, or MIT, which are private institutions, from setting some boundaries over what can be said or expressed.
The AAUP and FIRE have generally been on the side of maintaining few or no such boundaries. The shorthand ways of putting this is they view academic freedom through the lens of the “First Amendment” and FIRE in particular is a “free speech absolutist” organization. NAS has a contrasting view.
We treat academic freedom not as the end, but as an instrument that helps to advance the pursuit of truth, the transmission of important knowledge, the shaping of good character, the preservation of a free republic, and the sustenance of a worthy civilization. Academic freedom contributes to these other goods because it opposes—and ideally forestalls—the temptations to advance organized falsehoods, orthodoxies founded on suppression of alternative views, and informed debate. This elevates academic freedom to the place of high principle, but not the highest principle. Truth is more important. Goodness is more important.
Of course, that raises the problem of how to recognize truth and goodness. One line of thinking that has gained considerable purchase on campus in the last thirty years is that these qualities cannot be recognized at all. Either they don’t exist, or they are so thickly obscured by self-interest, political power, or religious delusion, that we are better served by the doctrine of “free speech” plain and simple. The value of free speech, in this view, should not be measured by its content or its purpose. It is good in its own right. And if it is sometimes put to purposes that we dislike, that is just the price to be paid for maintaining the principle.
NAS is on the other side of this fence. We think academic freedom is very important, but its value lies in how well it serves higher education. And to put it plainly, when academic freedom is invoked as a reason not to get in the way of mobs inciting genocide, it is invoked falsely.
What Didn’t Happen
What is what should have happened:
Congresswoman Stefanik: Dr. Kornbluth, at MIT, does calling for the genocide of Jews violate MIT’s code of conduct or rules regarding bullying and harassment? Yes or no?
NAS substituting for President Kornbluth: Yes, of course. But if may be allowed to elaborate. I am chagrined that my university failed to come forth immediately when students did, in so many words, call for the genocide of Jews.
We knew what they were saying when they chanted for Intifada. But too many administrators and staff, and yes, faculty members as well, were caught up in the reckless excitement of joining a ‘cause’ that they thought captured their disdain for the nation of Israel, and the West generally. This is a deep problem at MIT where a significant number of students, including many from the Middle East, have been brought up on anti-Western slogans and ideology. Some of this is straightforward antisemitism, but some of it also comes from other strands of ideology. MIT is after all the home institution of Noam Chomsky, and it has long harbored a contingent of faculty and students who abhor Western civilization and hate Israel.
I knew what was happening but I feared to take action because I knew how quickly this mob would turn its fury on me—and perhaps become even more inflamed against Jewish member of the MIT community. I profoundly regret not acting promptly to draw the line between legitimate expression of political views and inciting mob hatred and violence. It needs to be made clear to every member of the MIT community that crossing that line is a once-and-done offense. The offender, if he or she is a student, and is found guilty after due process, will be expelled. The same will happen with faculty members. Academic freedom does not extend to a right to threaten people with murder, rape, torture, or kidnapping, and certainly does not extend to threatening genocide.
NAS substituting for President Magill. Before you ask me the same question Congresswoman Stefanik, let me say I agree entirely with President Kornbluth. The tendrils of antisemitism at Penn go even deeper. One thing president Kornbluth didn’t mention is the role that DEI plays in advancing antisemitism. The diversity, equity, inclusion doctrine is the stepping stool for the institutional dynamics that are on display in the pro-Hamas demonstrations. Years of recruiting faculty members by filtering out candidates that were insufficiently committed to DEI has left us with a faculty that marches in lockstep with the idea that “settler colonialism” and “white oppression” are the great evils in the world have left Penn as community self-blinded to real evil. It is no real wonder why Jewish students on my campus are afraid. We have left them exposed to those who are calling for their deaths. All I can say is this ends today.
NAS substituting for President Gay. Allow me to add that I also agree with President Kornbluth and with President Magill. Congresswoman Stefanik, you ask does calling for the genocide of Jews violate the code of conduct or rules regarding bullying and harassment at Harvard? My answer is an unequivocal yes. Until now I have sought to hide that answer from myself as much as I have attempted to deceive the public. I have wanted to say, ‘It’s complicated. It depends on context. Calling for mass murder isn’t really calling for mass murder when you are trying to make a dramatic statement about Israel’s unjust treatment if Palestinians.’ But you know and I know that those words are just an evasion. Students could criticize Israel’s policies towards Palestinians in ways that are perfectly consistent with academic freedom, but that’s not what has been happening. Instead, some student groups seized the occasion of the horrific atrocities committed by Hamas to celebrate mass murder and to call for more of it. They raised the spectrum of pogrom on my campus. And I literally did nothing. Earlier you suggested that I resign my position as president of Harvard. Now as I reflect on the profound failure of my leadership during this crisis, I am forced to agree that I could best serve Harvard by stepping down.
Boundaries and Excuses
My friends at FIRE and elsewhere will surely disagree when I say that academic freedom is a feeble excuse for the behavior we have seen on campuses across the county for the last several months. Those friends fear that if the doctrine of academic freedom is allowed to be trimmed in such a way as to exclude certain forms of hateful behavior, the “hateful behavior” exception will soon be applied to all sorts of opinions the academic left doesn’t like. Or the academic right doesn’t like—if one can find any corner of the United States where the academic right holds power on campus.
Those worries are legitimate. But it is important to add that the academic left isn’t waiting for a new “hateful behavior” exception to academic freedom. It blasted that hole in the safeguards of academic freedom some time ago. University of Chicago Professor of Geophysics Dorian Abbot was disinvited from giving a scientific MIT lecture when it became known that he had criticized DEI. Penn law professor Amy Wax is being persecuted at her school for her views on affirmative action. Harvard economist Roland Fryer was suspended and sanctioned by none other than Claudine Gay, allegedly for "unwelcome conduct of a sexual nature"—a case that had been dismissed until Gay resurrected it. The story seems to more to with her dislike of Fryer’s research findings that contradict her views of “systemic racism.”
So the fear that the protective walls of academic freedom will collapse if American higher education disallows calls for genocide have little basis. Those protective walls vanished in the last generation or two. I know this from day in, day out attempts to defend the people who should have been protected by academic freedom but are not. So, let’s look at the people who are, somehow, claiming the protections of academic freedom while engaged in behavior that in no way merits such protection. What are the boundaries of “free speech?” They are pretty much the same as the boundaries of civilization. Savages need not apply.
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