The United States is at once the most remarkable and ridiculous country in the history of the world.
We are, as Louis Hartz noted in his 1956 classic book The Liberal Tradition in America, a country, like Jay Gatsby, born from a Platonic idea of itself. John Adams, Benjamin Franklin, Thomas Jefferson, James Madison, and George Washington created the idea of America as a free-standing representative democracy with three branches of government and fought an eight year war to bring it into existence.
We are also a country some of whose leading universities – Harvard, Penn, and MIT – have presidents who testify before Congress and cannot find the words within their presidential tool boxes to say that on their campuses no group can march in front of the libraries and dorms and chant death to all Jews, genocide for the Jews – or death to all Muslims or Palestinians or Ukrainians or Mexicans.
The backlash for the disgraceful performance of each college president is that the United States is the most litigious country in the history of the world and is the reason Penn’s president Liz Magill, has already resigned as has the chairman of Penn’s Board of Trustees.
No country has a law which protects freedom of speech as much as the United States’ First Amendment to the Constitution (which amounts to a law).
Private universities are not bound by the First Amendment
And even though the contorted and free-of-courage testimony before the House Committee on Education and the Workforce of each president did not rely on the First Amendment for its defense – because the First Amendment has no force at private universities – the presidents still made arguments that indicated that “the First” underlay much of what they said.
Lawyers can talk till hell freezes over, but it will never be a reasonable argument to say that our top private universities should permit any group of students to march down the street of their campuses and call for the death of all Jews or any group people, to call for genocide. Many Jewish students at Penn have been afraid to leave their dorm rooms.
The presidents, however, used legalistic arguments to justify their universities’ codes of conduct when questioned by House Republican Conference Chairwoman Elise Stefanik (R-NY). They admitted that in certain “contexts” calling for genocide would be prohibited on their campuses, namely when this language was directly connected to efforts to cause imminent violence at specific places and times. And this is what First Amendment law says.
What was needed, however, was a statement by each president that made it clear that regardless of what the First Amendment and case law that addresses it says, there must be a rule in their code of conduct that prohibits hate speech (which is constitutionally protected) that calls for genocide. They each should have said that while their codes of conduct do not say this today, it would be updated in the coming days.
Nuance is the enemy of reason in some circumstances, and this is such a circumstance.
First Amendment lawyers can nuance to death genocide language and hate speech issues, but this is not in fact a legal issue. It is a question of club rules for Ivy League universities and honorary Ivy League universities – and indeed all private colleges and universities.
You cannot yell “fire” in a theater unless there is a fire; that is part of First Amendment law with its restrictions. Private universities, regardless of the First Amendment, have no obligation to respect the First Amendment, and they are therefore free to impose certain restrictions on what speech is not permitted on their campus.
Public universities, which I leave for another time, have a taller order, but there is also a path for them to prohibit the language of genocide on their campuses.
A circumstance where nuanced analysis is needed is the way Israel is prosecuting the war against Hamas. This is an extremely complex situation where Hamas is hiding behind Palestinian civilians and Israel can’t attack Hamas militants without killing civilians.
There is, however, an easy solution to the language of genocide on private US university and college campuses. It can never be permitted when those who would use it are calling for the death of an entire group of people.
The writer has taught ethics and political philosophy at five US colleges and universities. He is editor of the interdisciplinary volume Leveraging (Springer, 2014). Contact: dmamaryland@gmail.com.