Free-speech absolutism. What does it even mean in this tortured 21st Century?
Everyone understands the First Amendment doesn’t protect crying “fire!” in a crowded theater. That’s because yelling fire in that circumstance would be inherently dangerous and pose a grave threat to people in the theater. So, it stands to reason that speech that poses a severe and immediate danger to people isn’t protected speech. That seems straightforward enough, or does it?
Does the First Amendment require that targeted people be in immediate and imminent danger of being harmed, like people in a crowded theater, before the speech that called for such targeting is actionable? So-called free-speech absolutists would say yes. They are fools.
Allow me to be unequivocal. The Presidents of three of the most prestigious Universities in the world, Harvard, M.I.T., and Penn, when testifying in Congress this week, eloquently demonstrated that they seem to be among the most ham-headed, half-witted and seriously incompetent people in leadership positions in the United States. And like the buffoon who might condone yelling “fire!” in a crowded theater, they are no less dangerous. They aren’t simply akin to that buffoon who might yell fire. In an almost absurd defense of free-speech absolutism, they encouraged those who may very well start the fire. Liz Magill, President of the University of Pennsylvania, has since resigned.
Watching the templars of the American academy, those temples of so-called higher education, tie themselves into knots was as breathtaking as it was depressing.
They tried mightily to thread the needle, equivocating whether student calls for genocide would be consistent with their institutions’ code of conduct. Watching and listening to these leaders of prestigious universities speak to, indeed coddle, those student imbeciles who enthusiastically rallied in response to the murder, rape, and mutilation of Israeli men, women, and children was as illuminating as it was depressing. These university Presidents said to their students, in effect, we’re doing our best to defend your idiocy and to fend off those who take umbrage at your rallies in defense or justification of slaughter.
Each leader of these citadels of ivy was asked a simple question probing the ubiquity of free speech absolutism. “Does calling for the genocide of Jews violate your institution’s rules or codes of conduct? Yes or no?” It was, in effect, an oral exam on the limits of dangerous and threatening speech, which they each, in turn, flunked breathtakingly. In effect, they all answered that acts of genocide would have to occur or be attempted (acted on) before there would be a violation of their respective university’s rules or codes of conduct.
Listen to the exchange between Representative Elise Stefanik R-N.Y. and three prestigious Ivy League university presidents.
Stefanik: “At Penn, does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no?”
President Liz Magill: “If the speech turns into conduct, it can be harassment, yes.”
Stefanik: “I am asking specifically if calling for the genocide of Jews constitutes bullying or harassment?”
Magill: “If the speech becomes conduct, it can be harassment, yes.”
Stefanik: “I’m asking if the calling for the genocide of Jews, does that constitute bullying or harassment?”
Magill: “It is a conduct-dependent decision, Congresswoman.”
Stefanik: “Conduct dependent, meaning committing the act of genocide? Calling for the genocide of Jews is a conduct-dependent decision? That’s your testimony? The answer is Yes.”
Dr. Magill has since resigned.
Stefanik: “Dr. Claudine Gay, at Harvard, does calling for the genocide of Jews violate Harvard’s rules of bullying and harassment? Yes or no?”
Dr. Gay: “It can be, depending on the context.”
Stefanik: “What’s the context?”
Dr. Gay: “Targeted at an individual.”
Stefanik: “It’s targeted at Jewish students, Jewish individuals. 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?”
Dr. Gay: “Antisemitic rhetoric, when it crosses into conduct that amounts to bullying, harassment, intimidation, that is actionable conduct. And we do take action.”
Stefanik: “So the answer is yes, that calling for the genocide of Jews violates Harvard’s code of conduct, correct.”
Dr. Gay: “Again, it depends on the context.”
Try to wrap your head around this drivel.
Even liberal Harvard law professor emeritus Laurence Tribe criticized the Ivy League presidents’ testimony. “Claudine Gay’s hesitant, formulaic, and bizarrely evasive answers were deeply troubling to me and many of my colleagues, students, and friends,” he said.
Stefanik asked Sally Kornbluth, President of MIT, whether calling for the genocide of Jews constitutes bullying or harassment. “I have not heard calling for the genocide of Jews on our campus,” Kornbluth replied, dodging Stefanik’s question.
Jewish MIT graduate student Talia Khan, the daughter of a Jewish mother and Afghan Muslim father, criticized MIT President Kornbluth’s testimony, “The MIT administration, namely President Sally Kornbluth, has failed to address the crisis of rampant antisemitism on campus.”
Indeed, their overly lawyered response to Representative Stefanik’s straightforward question is the crisis.
Now, to be clear, all three university presidents made opening statements that they were appalled by antisemitism and that they all supported Israel’s right to exist. That’s commendable, and one can be sure that Israelis also support these universities’ right to exist. That, of course, isn’t the issue. The issue is simply the tolerance of antisemitic rhetoric combined with genocidal rhetoric at the institutions they run and the specific hostile environment that is imposed on the Jewish students who attend these hallowed Ivy-League institutions.
Then, of course, there is the sewer of social media, which has become the Wild West of vile, hateful, chilling, and dangerous antisemitic rabble-rousing. The daily antisemitic babble on social media makes the deadly invective against Jews that Nazi Julius Streicher spewed in his infamous Der Strummer in the lead-up to the Holocaust (for which he was executed for crimes against humanity at Nuremberg) seem tame. Yet, it has become accepted fare on social media today.
Time to wake up America. We’re sleep-walking through the run-up to a very dark period, and our children will pay the price if we don’t collectively and forcefully scream Enough!
When someone posted on Elon Musk’s X that “Jews have been pushing the exact kind of dialectical hatred against whites that they claim to want people to stop using against them,” Musk saw fit to reply by retweeting, “You have said the actual truth,” to his 160 million followers. Musk subsequently ran to Israel and toured the devastation, the murder, rape, and mutilation of October 7th, and announced that his antisemitic retweet was the “dumbest ever social media post.” How prescient of him. But, of course, by then, the damage was done.
There is neither a tradition nor any constitutional justification for so-called free speech absolutism when it creates an imminent lawless action, nor should there be. The courts have clarified that there must be some nexus between free speech and speech that doesn’t unreasonably endanger others.
In Feiner v. People of State of New York (1951), the Supreme Court held that the First Amendment does not protect an imminent lawless action, such as inciting a riot that creates a clear and present danger.
Similarly, in Brandenburg v. Ohio, while upholding general inflammatory speech, the Supreme Court established an exception to free speech with an “imminent lawless action” test whereby the government can limit speech that incites unlawful action sooner than the police can arrive to prevent such unlawful activity.
Given the advent of social media, the instances in which malevolent trolls can incite unlawful action before police arrive at the scene are, of course, unlimited. Our right to free speech is precious, but so-called free speech absolutism is turning this precious First Amendment freedom into a sow’s ear from a silk purse.
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Although she was not clever walking into Elise Stefanik's gotcha trap, Liz Magill was not entirely wrong. Your example (fire in a crowded theater) omits the condition that there be no fire. Context matters. In this case there are many fires: genocide, terrorism, war crimes, the risk of inadequate response to barbaric acts, antisemitism, islamophobia, loss of diplomatic standing, true and false accusations. It is very difficult to navigate successfully in the absence of good will, honest reporting, and through the shoals of political gamesmanship and claimed fulfillment of divine will. Genocide is a horror, as we Jews know, but implicit calls are just that. The enemy is ethnic prejudice -- against any ethnicity. And to fight prejudice we badly need the clear thinking of academic leaders, and philosophers, and clergy, and lawmakers, and a well educated public. When any of these do not think clearly, call them out. But do not impose the phony "yes or no" soundbite, talking-point-cheap-shot that Elise Stefanik used. For clear thinking, we must not condemn but respect nuances.
Thank you for your commentary this week. It is important and unfortunately necessary. As an American I was embarrassed by the Congressional Q&A of the 3 university presidents last week. I found it an incredible display of arrogance, ignorance, and prejudice.
Although she was not clever walking into Elise Stefanik's gotcha trap, Liz Magill was not entirely wrong. Your example (fire in a crowded theater) omits the condition that there be no fire. Context matters. In this case there are many fires: genocide, terrorism, war crimes, the risk of inadequate response to barbaric acts, antisemitism, islamophobia, loss of diplomatic standing, true and false accusations. It is very difficult to navigate successfully in the absence of good will, honest reporting, and through the shoals of political gamesmanship and claimed fulfillment of divine will. Genocide is a horror, as we Jews know, but implicit calls are just that. The enemy is ethnic prejudice -- against any ethnicity. And to fight prejudice we badly need the clear thinking of academic leaders, and philosophers, and clergy, and lawmakers, and a well educated public. When any of these do not think clearly, call them out. But do not impose the phony "yes or no" soundbite, talking-point-cheap-shot that Elise Stefanik used. For clear thinking, we must not condemn but respect nuances.
Thank you for your commentary this week. It is important and unfortunately necessary. As an American I was embarrassed by the Congressional Q&A of the 3 university presidents last week. I found it an incredible display of arrogance, ignorance, and prejudice.