Free speech debate intensifies after controversial hearing with university presidents

When the presidents of Harvard, the University of Pennsylvania and MIT sat for a congressional hearing in early December on allegations of antisemitism at their schools, free speech was at the center of the tense back-and-forth between lawmakers and administrators.

Lawmakers asked if calls for "genocide against the Jewish people" violated codes of conduct on campus.

The presidents responded that there are processes in place to determine whether students have violated school policies and that they have strong commitments to students' freedom of expression, stoking controversy around campus policies and free speech.

"The presidents' analysis, legally speaking, was correct. That, indeed, there are lots of questions that can't be answered yes or no," said Eugene Volokh, a professor of law at the University of California, Los Angeles.

He continued, "They're under oath, they're supposed to tell the truth. And the truth is that advocacy of genocide is sometimes protected under the First Amendment and sometimes not."

Several lawmakers called for their resignation, a call in which University of Pennsylvania President Elizabeth Magill obliged following the backlash.

"Disgusting that the presidents of Harvard, MIT, and UPenn refused to say that 'calling for the genocide of Jews' is considered harassment and bullying. Let's be clear: It is," said House Majority Leader Steve Scalise in a tweet. "This shouldn't be hard for college presidents to say."

The Israel-Hamas war has heightened tensions in higher education, prompting a rise in protests as well as antisemitic and Islamophobic incidents on campus.

But after years of canceled lectures, punished professors and accusations of discrimination on campuses around the country, free speech advocates and constitutional law experts say the hearing highlighted the nuance and inconsistencies in freedom of expression on campus.

"There's a kind of legal, technical, lawyerly conversation about when does speech cross the line that often seems to impede people from engaging in moral conversation about what is seen as the abhorrent, odious," said Jonathan Friedman, from PEN America's Free Expression and Education group.

He continued, "The presidents got caught offering a lawyerly response when the moment also called for clear condemnation of a moral but not legal nature."

In an interview with the Harvard Crimson, Harvard President Claudine Gay confirmed that she was "caught up" in an exchange focused on the policies and procedure.

“What I should have had the presence of mind to do in that moment was return to my guiding truth, which is that calls for violence against our Jewish community — threats to our Jewish students — have no place at Harvard, and will never go unchallenged," said Gay.

When is speech protected?

The schools represented at the congressional hearing are not bound to the First Amendment because they are private institutions, instead making a commitment to students that encourages a free exchange of ideas and viewpoints. However, these schools are obligated to the restrictions of nondiscrimination laws such as Title VI, which bans discrimination based on shared ancestry.

Both Harvard and the University of Pennsylvania are being investigated by the U.S. Department of Education for complaints of antisemitism and Islamophobia under Title VI.

These are just two of 77 open investigations under Title VI at K-12 school districts and higher education institutions dating back to 2016.

In response to the U.S. Department of Education investigation, a Harvard spokesperson told ABC News: “We support the work of the Office for Civil Rights to ensure students’ rights to access educational programs are safeguarded and will work with the office to address their questions."

In a statement to ABC News' affiliate, WPVI, a spokesperson for the University of Pennsylvania said: "The University is taking clear and comprehensive action to prevent, address, and respond to antisemitism, with an action plan anchored in the National Strategy to Counter Antisemitism. President [Liz] Magill has made clear antisemitism is vile and pernicious and has no place at Penn; the University will continue to vigilantly combat antisemitism and all forms of hate."

Public universities, however, are legally beholden to the First Amendment and have less leeway in what they can and cannot allow on their campuses, as well as nondiscrimination laws.

The First Amendment promises that the government will not prohibit or abridge the freedom of speech, which includes speech that is considered offensive or hateful.

For example, the United States Supreme Court ruled overwhelmingly in favor of the Westboro Baptist Church's ability to picket military funerals with signs that read “God hates f--s” and “Thank God for dead soldiers" in the 2011 case of Snyder v. Phelps.

In 1977, federal courts protected the free speech rights of Nazis, who had been denied a permit to march through an Illinois town in which many former Holocaust survivors lived.

When is speech unprotected?

However, not all forms of speech are protected under the First Amendment.

If the speech is a threat that incites imminent lawless action, threatens serious bodily harm, or causes an immediate breach of the peace, it could be considered unprotected, according to constitutional law advocates at the Foundation for Individual Rights and Expression (FIRE). It also does not prevent punishment against speech that intimidates or harasses another person, the ACLU reports.

In 1919, Supreme Court Justice Oliver Wendell Holmes established that in every case of free speech, its protection depends on "whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

For government employees, the Hatch Act also limits the political activities that they are allowed to engage in "to ensure that federal programs are administered in a nonpartisan fashion," according to the U.S. Office of Special Counsel.

The future of free speech?

Some, like University of Pennsylvania professor of law and philosophy Claire O. Finkelstein, are advocating for further restrictions on what kinds of speech are allowed on college campuses in light of the ongoing rise in hate.

"It's crucial to realize that Title VI of the 1964 Civil Rights Act should guide us here," said Finkelstein in an interview with ABC News. "We are obligated as an institution that accepts federal funds to make sure that our campus policies are consistent with Title VI, which requires that any students have equal access to all the educational opportunities that the university has to offer, and that we're not creating a hostile environment for those students."

At the congressional hearing, presidents were pressed on the use of the phrases "from the river to the sea" and "intifada" by student demonstrators.

The phrases have been used as a rallying cry for Palestinian rights and freedom, with the latter referencing historical Palestinian uprisings against Israeli occupation of the region. However, some Jewish advocacy groups consider the phrases to be antisemitic code for violence against Israelis and Jews and advocating to wipe Israel off the map.

"This phrase is different from a phrase like 'we want Jewish genocide,'" said Finkelstein, referring to "from the river to the sea." "We have to recognize that it's ambiguous. It is the sort of phrase that may have to be assessed in context."

Volokh warns that increasing restrictions could be a slippery slope.

He explains, for example, "Many people call Israel a racist state. For decades, many opponents of Israel have argued that Zionism is racism. If you allow punishment of hate speech, pro-Israel speech would presumably then be equally punishable because again, to many in the university, that's racist hate speech.

Civil liberties groups like the ACLU and FIRE have defended the university's initial response, saying that the First Amendment "exists to protect exactly this kind of political expression" in an interview with ABC News.

"Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution," the ACLU said in its "speech on campus" guidance. "Such restrictions deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive."

Some colleges have been struggling for years to identify a solid stance on free speech, according to First Amendment law experts who say that speakers on many sides of the political spectrum have been de-platformed from speaking in university-supported events or that professors have had their university jobs threatened for their speech.

FIRE released a report in April that found that attempts to punish college and university professors for their speech have skyrocketed over the past two decades, from only four instances in 2000 to at least 145 in 2022.

FIRE has filed and settled several lawsuits in recent years against higher education institutions for firing professors based on their speech and have also sued state governments for legislation that restricts what they can teach in classrooms.

In recent years, students, too, have acknowledged a shift in whether free speech is protected on campus. A 2022 Knight-Ipsos poll found that the percentage of students who think free speech rights are very secure has fallen from 73% to 47% of students since 2016.

Friedman argues this ongoing debate is a chance for colleges to address inconsistencies in how freedom of expression or speech is applied on campus.

"This just hasn't necessarily been institutionalized or consistent among different parts of the university, and universities are enormously complicated institutions," Friedman said. "Many of them haven't really thought in depth about how they're going to draw lines around certain kinds of expression and how they're going to do so consistently."