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