Free Speech, Hate Speech, and Conduct

A Conversation and Editorial on the Confusion at Elite Universities

Below is an op-ed that was published in the print edition of The Providence Journal, Rhode Island’s main newspaper, on 12/23/23. It is not published online. It is by Dr. Michael H. Bernstein, who is an experimental psychologist and an Assistant Professor at the Warren Alpert Medical School of Brown University and Dr. Miryam Yusufov, a clinical psychologist and an Assistant Professor at Harvard Medical School

It is being reproduced* below with added commentary from the authors. For some of the added comments, both authors agreed; others only reflect the view of one author. These are delineated using author initials.  All commentary not in the published article is given in italics and the article is in bold.

Rodin. The Gates of Hell.

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Introductory Commentary by MB and MY

Before presenting the article, it is worth addressing the elephant in the room: Where should the line between protected and unprotected speech on campus ought to be?

MB and MY each provide their perspective.

MB: This is extremely difficult and reasonable people can disagree.  Sam Harris (around 9:00 in episode #344) makes an interesting argument that when deciding where these boundaries are, we should distinguish between speech used to discuss ideas and speech during protest. I think this should be explored further.  For example, a philosopher teaching an ethics seminar should be able to pose outlandish questions such as “why is slavery wrong” and even play devil’s advocate making arguments in favor of slavery. However, while I think that kind of speech, which is used in the spirit of pursuing an ethical truth, is within bounds, I would not fault a university for forbidding students from chanting pro-slavery slogans on the campus quad.

More generally, I think that universities should err heavily on the side of allowing speech.  However, if forced to take a side, I would swallow my strong pro free speech leanings and say that I support colleges forbidding genocidal speech even if not targeted at an individual. I do believe it is somewhat of an edge case though. Colleges are unique in the sense that students are less able to avoid threatening language than general members of the public. If the KKK were to march in a public area in my hometown, which is a right I support, I would lock the doors, refuse to allow any Klan member inside, and take alternative routes to work to avoid seeing them. But college students face qualitatively unique barriers in controlling their physical environment. Many need to leave their dorm room to eat at the cafeteria or even go to the bathroom. They don’t have the power to control who does and does not enter their dormitory. If they have class in a building next to a protest they are forced to view the protest. For those reasons I do favor a small amount of well-calibrated speech restrictions unique in the college setting, though we need to be vigilant it does not snowball in a manner that prevents open inquiry or punishes students for merely unkind or sloppy language.

MY: I agree with much of what MB writes, but there are some important points of disagreement. I agree colleges are unique in being somewhat of an “enclosed” space – essentially a bubble. They are a community of their own. However, while we may not be able to control the mere existence of the KKK, I believe that their organized activities in public areas cross the line into hate speech - and conduct - and can easily escalate into threat/harm of their targeted groups. Their continued existence is due to the nation’s free speech rights. However, I believe that intent and ideology are what cross the line over from free speech to hate speech. Hate speech leaves members of minoritized groups feeling or actually being unsafe. Unlike MB, I believe that hate speech should be generally prohibited. Specifically, white supremacy is the KKK’s fundamental ideology, and they are allied with neo-Nazis; their mere presence is a threat to their targets (e.g. people of color and Jews). I also wonder about the function of permitting hate speech. Is it to allow individuals to freely express hatred towards targeted groups? Why does hate speech need to be freely expressed especially if it comes at a cost to the targeted group(s)?

While free speech promotes conversation, intellectual exchange, and ideas, it can be threatening to individuals belonging to groups that are being discussed and targeted, both within and outside of college campuses., I do not necessarily believe that speech that someone may find offensive (as an isolated incident) needs to be prohibited. However, if certain slogans, phrases, words and terms are generally perceived to be offensive, threatening, etc to a certain group, then they should not be permitted. For example, while there is debate over the slogan, “from the river to the sea, palestine will be free” - in that some argue it does not call for the genocide of Jews or destruction of Israel - the vast majority of Jews and Israelis perceive it in that manner. I agree with MB that a conversation during a seminar can be very different from the content that emerges during protests – here, in my opinion, context really matters - especially because conversations during seminars are presumed to be more of a “safe space” than protests, which can easily escalate to be unsafe. Nonetheless, a student can feel unsafe in either context even if likely amplified in a protest.

*The submitted version is being used. The editorial team at the newspaper made some minor edits.

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The “Speech Turning to Conduct” Standard at American Universities

Last Tuesday (← that was kept because it was in the original editorial; it refers to hearings that took place in December 2023, LJ), the House committee on Education and Workforce held a now infamous hearing on campus antisemitism. Since the beginning of the 2023-2024 school year, 73% of Jewish college students have experienced or witnessed some form of antisemitism.  The critical moments of the hearing came when congresswoman Elise Stefanik questioned the presidents of Harvard, University of Pennsylvania, and MIT on whether “calling for the genocide of Jews” is allowed on their campus. All three equivocated.

MB: In a recent Boston Globe article, Steven Pinker makes the interesting point that Harvard President Claudine Gay (and presumably the others as well) “interpreted the question not at face value but as pertaining to whether Harvard students who had brandished slogans like ‘Globalize the intifada’... could be prosecuted under Harvard’s policies. Though the slogans are simplistic and reprehensible, they are not calls for genocide in so many words.” If Pinker’s assertion is true, then the outrage over Gay’s response is not warranted.  It is not clear that statements like “Globalize the intifada” are calls for genocide, and we when faced with such ambiguity the more generous interpretation should be granted.

MY: Navigating these questions when asked about “genocide of Jews” should have been taken at face value – and then clarified. However, a lot of folks have been getting into sticky territory chanting statements such as “globalize the intifada” and “from the river to the sea”. As I stated above, for many Jews and Israelis, they indeed do represent calls for genocide, particularly because of the events that took place during the Intifadas, including suicide bombings. Not surprisingly, Jews and Israelis often perceive these slogans to be antisemitic (and represent calls for genocide/destruction), although many argue that they are not antisemitic.  This also represents a double-standard, as it is generally considered inappropriate to tell a person of color what racism means or what constitutes a racist statement. I agree with MB that these slogans are often ambiguous – and unfortunately, many people who chant them during protests do not fully know what they mean. For example, if an intifada includes suicide bombings (which the Second Intifada did), and one was to declare support for “globalizing” the intifada, would that mean they endorse suicide bombings all over the world?

MB & MY: Nonetheless, we fundamentally disagree with Pinker that the question was not interpreted “at face value.” One could have responded with something to the effect of: “Calling for the genocide of Jews is not permitted on campus. However, we have a very stringent definition of what constitutes ‘calling for genocide,’ and while the recent chants have been vile and anti-Semitic they do not rise to that level.” To be fair, spontaneously answering questions like the one Stefanik is difficult, so one could argue that I’m holding them to an unfairly high standard. However, the following three points make us think otherwise:

1)      At least in the case of President Gay, she heard the congresswoman pose that same question to both the MIT and Penn presidents before it was asked of her. She presumably knew that question was coming and had time to think about her answer.

2)      Related to #1, we’re talking about presidents of some of the most elite institutions in the world, not members of the general public. They are presumably very adept at navigating difficult PR issues and were prepared by a large team before their testimony. Are we really to believe their response to a question such as this was not prepared in advance? The responses sure seem formulaic and not spontaneous.

3)      To my knowledge (and I encourage readers to correct me if I’m wrong) no president has clearly made that argument as a post-hoc justification for what was said during the committee hearing. Why wouldn’t they have if true?

Much has been written on the double-standard between Jews and other minority groups. Indeed, if a student said all LGBTQ+ people should be killed are we really to believe that student would not be disciplined, and likely expelled?

MB: There is a lot to say, but many others have tackled this point, so we decided not to elaborate extensively. However, it is worth nothing that in a portion of the hearing not widely circulated, Stefanik did ask President Gay whether calling for the genocide of African Americans would be against Harvard’s policies (see 1:29:30 here). Gay did start to respond in a similar hedging manner. This might seem like evidence against the double-standard argument, but it doesn’t hold up to the empirical reality of Harvard. In 2019, they withdrew an offer of admissions for a student who had years earlier used the N- word in a leaked private google doc. 

This takes me to perhaps the most perplexing part of the testimony. Right or wrong, Stefanik was clearly out for blood, and she suddenly abandons the line of questioning that would be most damning. If you view that clip (1:29:30), you’ll see she talks over Gay and actually prevents her from answering the question about whether calling for the genocide of African Americans violates the code of conduct. She should have done the exact opposite. Imagine this exchange.

Stefanik: Does calling for the genocide of African Americans violate Harvard’s code of conduct?

Gay: [Something about it depending on context]

Stefanik: So if it depends on context, then there are some times in which calling for the genocide of African Americans is protected, right?

Gay: [Forced to reluctantly go along]

Stefanik: Previously a student accepted to Harvard had that acceptance rescinded because, as a 16-year old, they used the N-word in private communication. Are there circumstances in which current, public calls for genocide is more protected than the private past use of racial epithets?

Something like this would clearly expose the lie that a student could call for the genocide of African Americans at Harvard without facing sanctions. What can Gay say in response that isn’t absurd? Once it becomes clear that would not be protected speech, then the double-standard between Jews and other groups becomes hard to miss.

MY: Agreed. Unless of course Dr. Gay was not aware of that offer being rescinded because it predated her presidency.

MB: I find it extremely odd Stefanik didn’t take this approach. It is like she laid the perfect trap, but then let her victim escape at the last minute.

MY: My opinion is that the double standard is at least partly fostered by the presumption that “Jews are White” and thus not in need of comparable protection. Yes, many Jews are white-passing in the United States. However, in Israel, approximately 50% of the Jewish population are Mizrahi Jews, meaning they have no European ancestry. They are MENA (middle eastern/north african) instead. And sadly, the “white” (European/Ashkenazi) Jews that live in Israel were not white enough for Hitler and Nazi Germany. Interestingly, the KKK in the USA - the country’s oldest terrorist group with white supremacist ideology – have listed Jews as targets because they are not white.  In sum, I believe that many people in the west – including what happened in the congressional hearings - are a reflection of people attempting to apply Western identity politics to the middle east.

             However, there was another important part of the testimony that has not received much attention. The standard of speech turning into behavior or “conduct” was repeatedly raised as important in the determination of whether said speech is allowed on campus. This was presumably underscored because of the tension between ensuring student safety and protecting free expression. When Elizabeth Magill, who just resigned as President of Penn due to backlash from the hearing, was asked whether calling for the genocide of Jews violates Penn’s rules or code of conduct, she said, “If the speech turns into conduct it can be harassment, yes.” Claudine Gay, Harvard University President, also repeatedly asserted the “speech crossing into conduct” standard.

The notion that the permissibility of speech depends on subsequent behavior warrants scrutiny. If this standard were used, it would be impossible to determine whether speech is permitted in the moment. That is, no one would know whether they are saying something protected at the point of speaking.

MB: The point we raise here seems rather obvious if you take those statements seriously – which we should, as this was congressional testimony given under oath. In the several post-mortem articles I’ve read about the incident, I find it confusing that no one has really explored what the “speech to conduct” idea implies.

MY: I’m also curious as to what readers think about speech being a form of conduct. If speech is not a form of conduct, then does this mean that all speech (including hate speech) is permissible on campus - as long as it doesn’t lead to physical harm? By this logic, should that Harvard offer (described above) not have been rescinded?

Would Harvard only forbid a student from chanting “globalize the Intifada” if it were followed by violence against a Jewish student, staff, or faculty member?  Would it only forbid a student from publicly singing a KKK song which includes a call for violence against Black people if it was followed by violence? Is this a general standard for speech? If so, that would lead to some bizarre situations. It would suggest that saying “you should kill my roommate” is allowed so long as the roommate is not actually hurt. And it might suggest that innocuous speech is forbidden if used as the basis for violence.

One could argue the presidents only meant the speaker’s conduct.  But this was not stated and seems unlikely. If a student did sing one of the KKK songs and proceeded to physically attack a Black student, wouldn’t the violation be the violence rather than the speech?

The testimony, at least in the case of Harvard, is also perplexing given their “University wide” non-discrimination and anti-bullying policy.  Discriminatory harassment and bullying are both defined with respect to what a “reasonable person” would consider as “intimidating, hostile, or abusive.” Furthermore, one factor that is considered for discriminatory harassment is “whether it is physically threatening.” (our emphasis). Physical threat is a much lower bar than physical violence. Obscuring the issue even further is the fact that this policy seemingly defines speech as a part of conduct. “Classroom discussion of academic research” is given as one example of (permitted) conduct. If speech is a form of conduct, then “speech turning into conduct” isn’t even a coherent policy.

MB: Think about the implications of this. Why would Harvard’s policy, which I assume (?) is a legally binding document, contradict the Harvard President’s testimony? And why has no one pointed it out?

MY: I also think it is worth noting that the policy cites phrases such as “reasonable person” and “would consider intimidating, hostile” etc. Given this logic, wouldn’t it be fair to say that if a student finds “globalize the intifada” or “from the river to the sea, Palestine will be free” a call for genocide, then it is to be considered as such?  Also, see above regarding double-standards regarding it being inappropriate, offensive, and invalidating to tell a person of color what racism is, but it being permissible to do that to Jews.

This debacle suggests that policies surrounding speech restrictions on campus are, to put it mildly, ambiguous, and inconsistent. To the extent that universities wish to place limits on speech exceeding those required by law, they must do so in a manner applicable to all groups. Policies should be clear with transparent boundaries known in advance.