The Boston Globe

Colleges shouldn’t usher in a new era of speech codes

- By Nico Perrino Nico Perrino is executive vice president of the Foundation for Individual Rights and Expression and host of “So to Speak: The Free Speech Podcast.”

If the college presidents’ disastrous appearance before Congress last week results in new speech codes restrictin­g expression on campus, the cause of free speech will be set back decades. Already, we’re seeing the initial demands to ban “calls for genocide” shift to demands for “hate speech” codes. The board of advisers to the University of Pennsylvan­ia’s prestigiou­s Wharton School of business wants such a code. Governor Kathy Hochul of New York sent a letter demanding the state’s college presidents not tolerate “hatred of any kind.” But there is no blanket “hate speech” or “calls for genocide” exception to the First Amendment — and for good reason. When colleges implement broad speech bans that are untethered from existing legal standards, campus bureaucrat­s inevitably use them to punish speech they simply dislike.

Take, for example, what happened at Emerson College in 2021. Members of a conservati­ve student group handed out “China Kinda Sus” stickers and were accused of “anti-Asian bigotry and hate” by the college’s president. The group was subsequent­ly found guilty of violating the school’s “Bias Related Behavior” policy and suspended. It didn’t matter that the students were protesting the Chinese Communist Party or that one-third of the group’s members were Asian.

Of course, Emerson leaders and the university presidents who testified before Congress last week represent private schools not bound by the First Amendment, which only applies to government actors, including public colleges and universiti­es. Neverthele­ss, Emerson, the Massachuse­tts Institute of Technology, Harvard University, and the University of Pennsylvan­ia all voluntaril­y commit to First Amendment standards in their policies. In fact, before she resigned last week, Penn president Liz Magill acknowledg­ed that Penn’s policies on free speech are “guided by the Constituti­on and the law” — as they should be.

A college’s mission should be the pursuit of knowledge. And knowledge cannot be discovered in an environmen­t where truth is predetermi­ned and dissenters punished. Strong free speech protection­s ensure a “pall of orthodoxy” doesn’t spread across campuses.

The problem is, these universiti­es are hypocrites on free speech.

MIT famously canceled a planned 2020 lecture by University of Chicago professor Dorian Abbot after faculty and graduate students complained about his views on certain diversity, equity, and inclusion initiative­s. Harvard administra­tors drove out lecturer

Carole Hooven for arguing that biological sex is real. Penn prohibited a group of students from screening a documentar­y critical of Israel. Harvard and Penn rank last and second-to-last, respective­ly, for free speech in the recent College Free Speech Rankings compiled by my organizati­on, the Foundation for Individual Rights and Expression.

Double standards for free speech are everywhere on college campuses. But the answer isn’t to expand censorship: It’s to end it.

Now, what about calls for “genocide”? If such calls meet the existing exceptions to the First Amendment — constituti­ng true threats, incitement to immediate violence, or discrimina­tory harassment — administra­tors must quickly respond to them. But a new, general exception for abstract “calls for genocide,” untethered from legal standards, will surely be abused like every other speech code that goes beyond the First Amendment’s strictures.

It’s easy to see how such a ban would apply to all manner of political speech, including Jewish students supporting Israel’s invasion of Gaza or pro-Palestinia­n students who oppose the state of Israel. There is no shortage of people who say each of those viewpoints is genocidal and who would make quick use of the new speech code to target their political opponents.

Beware of censorship envy. Remember, speech codes are enforced by people; in this case, the same people accused of enabling antisemiti­sm. History has repeatedly demonstrat­ed that giving administra­tors the tools to censor will inevitably lead to the targeting of Jewish students and other minorities.

In fact, FIRE was founded in the wake of the infamous 1993 “Water Buffalo” incident at Penn. In that case, Israeli-born student Eden Jacobowitz was charged under a racial harassment code for shouting “Shut up, you water buffalo” at a group of what he described as rowdy Black sorority students outside his dorm room window. The phrase is a rough English translatio­n of “behema,” Yiddish slang for a loud, unruly person. It’s not a racial epithet.

When the University of Michigan passed one of the nation’s early hate speech codes to address racist incidents against Black students in the 1980s, its first applicatio­n was to a Black student. A federal court later struck it down as unconstitu­tional.

Fortunatel­y, the prevalence of restrictiv­e speech codes has steadily declined over the years. FIRE has found the percentage of schools maintainin­g the worst “red light” policies has fallen from 75 percent in 2007 to 19 percent today. But if those calling for new campus hate speech and harassment codes get their way, this broad downward trend will reverse — leading to disastrous outcomes for free speech.

College leaders should emerge from this current crisis by learning the lessons of the past. They should abandon double standards, recommit to free speech, and reorient their institutio­ns toward their core purpose.

A college’s mission should be the discovery, improvemen­t, and disseminat­ion of knowledge. And for that mission to prevail, free speech must be protected.

The problem is, these universiti­es are hypocrites on free speech.

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