Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I condemn anti-Semitism in all forms. Moreover, calls for genocide of the Jewish people have no place in reasonable discourse, and I condemn that, too. I did not think…
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I condemn anti-Semitism in all forms. Moreover, calls for genocide of the Jewish people have no place in reasonable discourse, and I condemn that, too. I did not think such a statement would be necessary, but in today's context, it is necessary.
These sentiments were shared repeatedly by Claudine Gay of Harvard, Sally Kornbluth of MIT, and Elizabeth Magill of the University of Pennsylvania during their testimony last week.
Unfortunately, because of a 5-minute exchange toward the end of the hearing that was clipped and shared online without full context during the hours-long hearing, these university presidents' commitment to fighting anti-Semitism has been called into question.
This is because, during the clip, they answered the question asked. They made the mistake of believing the hearing was a serious attempt to ascertain what could be done to promote student safety on campus in light of the tension between the First Amendment protections of freedom of speech on the one hand and the criminal code, title VI, and campus code of conduct on the other.
Some speech, such as threats, can be so severe as to be criminal. Other speech could establish a hostile environment on campus in violation of title VI of the Civil Rights Act of 1964.
Universities can establish codes of conduct prohibiting some speech while respecting the First Amendment, but any speech involved in a First Amendment analysis is likely to be reprehensible. The fact that it might be protected does not make the speech any less reprehensible and does not suggest that you even agree with it.
A call for genocide of Jewish people is obviously reprehensible in all contexts, but whether or not it is constitutionally protected depends on context.
Don't take my word for it. Read the article published recently in The Harvard Crimson authored by Harvard law professor Charles Fried, formerly the Solicitor General during the Reagan administration.
In the article, Professor Fried states: ``When asked whether they would discipline students (or, I suppose, faculty) if they called for genocide of Jews, each president responded that the answer depends on the context of the utterances.''
He goes on by saying: ``I have taught at Harvard Law School since 1961 and began practicing before the Supreme Court in 1985--for 4 years as Solicitor General of the United States--and I would have felt professionally obligated to answer as the presidents did. It does depend on context.
``In the 1969 case Brandenburg v. Ohio, the Supreme Court ruled unanimously that `constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'''
He continues: ``Speech itself is, indeed, well protected.''
The three university presidents head private institutions that are not bound in every aspect by Federal constitutional restraints, but each institution, in various ways, has declared itself committed to protecting First Amendment values over the years.
It is not surprising that their presidents would have answered that whether they would discipline or expel students for advocating genocide depends on the context. If one seeks to follow constitutional principles, answering this question certainly does depend on the context.
That is what Professor Fried said. That is the kind of analysis applied to any freedom of speech question. It is even being applied to former President Trump today. Was his speech on January 6, 2021, a crime of inciting violence or was it protected speech?
Incredibly, the university presidents were directed to give a one- word answer, yes or no, and they responded as Professor Fried said he would have been professionally obligated to do: It depends on context.
Regrettably, they took the question as an opportunity to seriously discuss the constitutional implications of a complex question. That was a big mistake. For that mistake, we are considering a resolution to condemn them and ask them to resign.
I also think it is important to put this resolution in context because, in 2017, after white supremacists walked through the campus of the University of Virginia shouting, ``Jews will not replace us,'' Democrats on the committee requested a hearing on that incident and nothing happened. Meanwhile, the one who declared there were ``good people on both sides'' has been enthusiastically endorsed.
We need to do everything the law allows to address anti-Semitism,
Islamophobia, racism, homophobia, and other forms of discrimination on college campuses. This resolution is not a serious effort to advance that cause. I, therefore, oppose this resolution.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield 5 minutes to the gentlewoman from North Carolina (Ms. Manning).
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield 4 minutes to the gentleman from Maryland (Mr. Raskin).
Mr. Speaker, I yield an additional 2 minutes to the gentleman from Maryland.
Mr. Speaker, I yield an additional 1 minute to the gentleman from Maryland.
Mr. Speaker, may I inquire as to how much time is remaining?
Mr. Speaker, I include in the Record a December 8 statement from the Foundation for Individual Rights and Expression, a group invited by the majority in 2018 to testify at a hearing examining the First Amendment rights on campus and a group that authors the free speech ranking the majority cited several times at the committee hearing, titled, ``University Presidents Were Right to Condemn Hate Speech and Defend Free Speech.''
[From FIRE, Dec. 8, 2023]
Special Post: Stephen Rohde, `University Presidents Were Right to Condemn Hate Speech and Defend Free Speech'--First Amendment News 403.1
(by Ronald K. L. Collins)
When it comes to speech on college campuses, the problem is
one with a vintage flavor. Simply recall (if you can) what
Chief Justice Earl Warren wrote in his 1957 opinion in Sweezy
v. New Hampshire (a case successfully argued by professor
Thomas Emerson): ``The essentiality of freedom in the
community of American universities is almost self-evident.''
Note that it was a plurality opinion--and note also his use
of the word ``almost.'' In other words, doubts lingered.
Four decades later, in a book way ahead of its time, the
late Robert M. O'Neil awakened our world to free speech
issues that would define the world in decades to come. The
book was ``Free Speech in the College Community.'' In it, Bob
(a free speech champion and friend) wrote:
When the Carnegie Foundation for the Advancement of
Teaching surveyed university presidents for a study in the
late 1980s entitled campus tensions, more than half the
respondents noted that racial intimidation or harassment was
a serious problem on their campuses. The National Institute
Against Prejudice and Violence, which has the most detailed
database, cited at least 250 campuses at which acts of racial
hatred occurred in the period 1986-89. The institute has
elsewhere reported that one in five minority students
encounters some form of physical or psychological racial
harassment at least once a year.
And so the same problem resurfaces, but now in a new
context, growing out of the Israel-Hamas War and the free
expression issues raised by it: those of antisemitism and
hate speech. In a recent Politico Magazine interview,
professor Eugene Volokh said:
I'm worried that there is pro-Palestinian speech being
suppressed. I'm worried that there's some pro-Israeli speech
being suppressed . . . I also think that there are some
things that are being too much tolerated.
Mindful of all of the above and much more, what follows is
an op-ed by Stephen Rohde, author of ``American Words of
Freedom: The Words That Define Our Nation'' and ``Freedom of
Assembly,'' regarding the recent hearings on campus
antisemitism and the reactions to statements by the
university presidents on the matter.
At a contentious congressional hearing on December 5, the
presidents of three major universities unequivocally
condemned antisemitism and hate speech while standing firm in
defense of free speech. In a furious backlash, elected
officials, alumni, students and donors have unleashed
scathing criticism, going so far as to open a congressional
investigation and demand that all three resign.
The three presidents, Elizabeth Magill of the University of
Pennsylvania, Claudine Gay of Harvard, and Sally Kornbluth of
Massachusetts Institute of Technology, testified before the
House Committee on Education and the Workforce at a hearing
entitled ``Holding Campus Leaders Accountable and Confronting
Antisemitism.''
The episode reveals not only how little our elected
officials and the American people understand about the
concept of protected free speech at our colleges and
universities; it shows how, in a free society, confidence in
the value of protecting all ideas and viewpoints--even those
we despise--is eroding.
Nadine Strossen's `non-emergency speech'
Public colleges and universities are bound by the First
Amendment. Private colleges and universities, in their
written policies and handbooks (and in some states by
legislation), generally guarantee students and faculty
members the right to academic freedom and freedom of speech
comparable to the First Amendment.
In her new book ``Free Speech: What Everyone Needs to
Know,'' Nadine Strossen, who served for 17 years as national
president of the ACLU, provides a useful summary of current
First Amendment law:
The First Amendment permits government to outlaw the speech
that is the most dangerous, consistent with the ``emergency''
principle: speech that, considered in its overall context,
directly, imminently causes or threatens specific serious
harm . . . [on the other hand, the] First Amendment outlaws
the censorship that is the most dangerous: restrictions based
solely on disfavor of the speaker's ideas, or on generalized,
speculative fear that the speech might indirectly contribute
to some future harm.
Strossen calls the latter ``non-emergency speech.''
While non-emergency speech may potentially cause harm,
Strossen explains that ``it is dangerous to grant government
the added latitude to punish speech with a less direct,
imminent connection to potential harm'' because
``predictably, government (which is accountable to
majoritarian and other powerful interest groups)
disproportionately exercises any such discretion to suppress
minority voices and views.''
Strossen's warning applies equally to public universities
(which are an arm of the government) as well as to private
universities, which rely on the support of the federal and
state governments as well as donors and alumni, and who may
be inclined to suppress unpopular views in order to protect
their funding.
Consequently, whether students should be expelled or
disciplined for expressing their views goes far beyond simply
looking at the words they speak. It requires a serious
examination of the context and circumstances surrounding the
speech. The chants of protesters at a large rally screaming
``Kill all the Jews,'' while unspeakably vile and
contemptible, would not ``directly and imminently'' cause or
threaten specific serious harm when considered in their
overall context.
Yet the same words spoken by someone holding a gun on the
steps of a Jewish student center do pose a ``direct and
imminent threat'' and should be stopped and punished by
campus authorities and/or the government. What students say
in the classroom should be treated differently than what they
say at a campus rally or debate. Angry threats made to
individual students should be treated differently than the
same words written on a flyer or in an op-ed in the campus
newspaper.
The plight of Penn's President Magill
Members of Congress and other critics of the college
presidents apparently couldn't be bothered with the nuances
of these complex issues. In the midst of complaints that the
presidents failed to adequately condemn antisemitism, scant
attention has been paid to their opening remarks.
For example, Penn President Magill couldn't have been more
forceful in her condemnation of antisemitism. Given the
misleading and unfair criticism to which she was subjected
and the immediate calls for her resignation, her balanced and
comprehensive opening statement deserves to be considered in
detail.
After summarizing her impressive credentials prior to
becoming Penn's president (executive vice president and
provost of the University of Virginia, dean of Stanford Law
School, professor of law at the University of Virginia, law
clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg),
she immediately and forcefully stated that she and Penn:
. . . are horrified by and condemn Hamas's abhorrent
terrorist attack on Israel on October 7th. There is no
justification--none--for those heinous attacks. The loss of
life and suffering that are occurring in Israel and Gaza
during the ensuing war are heartbreaking. The pain extends to
our campus. I know it from my daily conversations with our
students, faculty, and staff, as well as parents and alumni.
Magill said she valued the opportunity to reaffirm her and
Penn's ``unyielding opposition to antisemitism, and to
outline the urgent, university-wide actions we are taking to
combat this centuries-old and resurgent threat.'' She also
said her ``first priority is to members of the Penn community
and, above all, to their safety and support.'' She continued:
I must also ensure that our academic mission thrives; that
academic freedom and the free exchange of ideas endure; and
that we swiftly address any violation of the Law or our
University's policies. These are the priorities Penn is
seeking to achieve in the actions I will discuss today.
She noted that prior to October 7, ``antisernitism''--a
pernicious, viral evil--was already rising in our society,
and global events have dramatically accelerated the surge. No
place is immune, and campuses, including ours, have recently
experienced an unacceptable number of antisemitic incidents.
We are combating this evil head-on with immediate action.''
She described how she ``condemned antisemitism publicly,
regularly, and in the strongest terms possible,'' and wanted
to:
reiterate my and Penn's commitment to combating it. For
decades our Division of Public Safety has learned from and
worked with the Anti-Defamation League office in
Philadelphia, and we are working closely with them, as well
as local, state, and federal law enforcement to promptly
report and investigate antisemitic acts against any member of
the Penn community. Where we have been able to identify
individuals who committed these acts in violation of existing
University policy or law, we have initiated disciplinary
proceedings and referred these matters to law enforcement
where appropriate.
President Magill went into detail about how Penn has
``acted decisively to ensure safety throughout and near
campus.'' Then she pointed out that like many communities
around the world:
Penn has also experienced protests, rallies, and vigils
related to the terrorist attack and the subsequent war.
Protest--and all it entails--has long been a feature of
university life. Penn's approach to protest is guided by the
U.S. Constitution, outlined in decades-old open expression
policies, and supported and upheld by trained Open Expression
Observers. We recognize the right of peaceful protest and
assembly, and we give broad protection to free expression--
even expression that is offensive. At the same time, we have
zero tolerance for violence or speech intended to incite it.
Our public safety officers are present at every protest,
rally, or vigil, trained in de-escalation techniques, and, if
necessary, they are ready to act.
Magill also talked about ``the challenges of fostering
robust debate during difficult times,'' how ``in addition to
respecting the right of protest, Penn is offering many ways
for students to come together in classrooms and in small
groups to discuss these issues,'' how ``educating citizens
requires engagement with real-world challenges and hard
topics--topics that often inspire passionate responses,'' and
how ``university leadership must provide guardrails that
encourage free and open expression while also ensuring a
secure environment.''
She outlined Penn's new ``Action Plan to Combat
Antisemitism'' and she announced that she had created a new
student advisory group on the Jewish student experience.
Magill also noted the:
``rising harassment, intimidation, doxing, and threats
toward students, faculty, and staff based on their identity
or perceived identity as Muslim, Palestinian, or Arab. Some
have lost family members in this war, and many are worried
about the safety of their loved ones in the region. Many are
also afraid for their own safety, and the horrifying shooting
of three Palestinian students in Vermont has only deepened
their fears.''
She said she was ``appalled by and have publicly condemned
these acts of harassment, threats, and intimidation. We are
investigating all allegations, even when threats have come
from outside our campus. We are providing resources and
advice to assist individuals with online doxing, harassment,
and threats.''
And she has created a Presidential Commission on Countering
Hate and Building Community ``to empower our campus leaders
to address antisemitism, Islamophobia, and hate in all forms,
and to lay the groundwork for a stronger, more connected
community.''
Magill ended her opening statements by reiterating that:
``[h]igher education institutions create knowledge, share
it for good, and educate the next generation--missions that
have never been more essential,'' and noting that on Penn's
campus today many people are ``engaged in serious and
respectful conversation--despite disagreement--about
difficult topics, including those related to the Israel-Hamas
war.''
Representative Elise Stefanik: `does calling for the genocide of Jews
Violate Penn's Rules or Code of Conduct? Yes or No?'
Most of the attacks on Magill focused on her exchange with
Representative Elise Stefanik, Republican of New York.
Stefanik noted that ``there had been marches where students
had chanted support for intifada, an Arabic word that means
`uprising' and that many Jews hear as a call for violence
against them.''
Stefanik asked Magill, ``Does calling for the genocide of
Jews violate Penn's rules or code of conduct? Yes or no?''
Magill replied, `'If the speech turns into conduct, it can
be harassment.''
Stefanik pressed the issue: ``I am asking, specifically:
Calling for the genocide of Jews, does that constitute
bullying or harassment?''
Magill, who joined Penn last year with a pledge to promote
campus free speech, replied, ``If it is directed and severe,
pervasive, it is harassment.''
Stefanik responded: ``So the answer is yes.''
Trying to give complete rather than glib answers, Magill
said, ``It is a context-dependent decision, congresswoman.''
Stefanik then exclaimed, ``That's your testimony today?
Calling for the genocide of Jews is depending upon the
context?''
After some more back and forth, Magill said, ``It can be
harassment,'' to which Stefanik responded, ``The answer is
yes.''
Given the totality of Magill's testimony, it is astonishing
and disappointing that Gov. Josh Shapiro of Pennsylvania said
he found her statements ``unacceptable.'' According to The
New York Times, he said:
``It should not be hard to condemn genocide, genocide
against Jews, genocide against anyone else,'' and ``I've said
many times, leaders have a responsibility to speak and act
with moral clarity, and Liz Magill failed to meet that simple
test. . . . There should be no nuance to that--she needed to
give a one-word answer.
Shapiro, who is a nonvoting member of Penn's board, urged
the trustees to meet soon. CNN has reported that the board
held an emergency meeting on Wednesday, December 6. No
outcome has been announced.
``It's unbelievable that this needs to be said: Calls for
genocide are monstrous and antithetical to everything we
represent as a country,'' said White House spokesman Andrew
Bates, according to The New York Times.
The Times also reported that Senator Bob Casey, Democrat of
Pennsylvania, did not mince words. ``President Magill's
comments yesterday were offensive, but equally offensive was
what she didn't say,'' he said in a statement. ``The right to
free speech is fundamental, but calling for the genocide of
Jews is antisemitic and harassment, full stop.''
Senator John Fetterman, a Pennsylvania Democrat, described
the testimony as ``a significant fail . . . There is no `both
sides-ism' and it isn't `free speech,' it's simply hate
speech,'' he said in a statement. ``It was embarrassing for a
venerable Pennsylvania university, and it should be reflexive
for leaders to condemn antisemitism and stand up for the
Jewish community or any community facing this kind of
invective.''
Did Magill's critics actually listen to her testimony?
Did these officials actually listen to Magill's testimony
or did they just rely on truncated news reports and angry
social media posts? In fact, Magill repeatedly and
unequivocally condemned antisemitism and the Hamas attacks,
and she said that calling for the genocide of Jews could
constitute harassment under Penn's policies.
The Times also reported that Marc Rowan, the chief of
Apollo Group and the board chair at the Wharton School--
Penn's business school--wrote to the university's board of
trustees asking them to rescind their support for Magill.
``How much damage to our reputation are we willing to
accept?'' he wrote. ``The call for fundamental change at
UPenn continues.''
Within 24 hours, a petition demanding Magill's resignation
had attracted more than 3,000 signatures. Did Rowan and the
3,000 who signed the petition actually listen to all of her
testimony before taking the extraordinary step of calling for
her resignation?
Now Congress is threatening all three universities with a
full-fledged investigation reminiscent of the HUAC and
McCarthy hearings of the 1940s and 1950s that looked into
communists and their ``sympathizers,'' questioning college
professors under oath about their teaching, writing, and
politics. Many were fired or forced to sign loyalty oaths.
On Thursday, Rep. Virginia Foxx, chair of the House
Committee on Education & the Workforce, told Fox News:
``[T]he Committee is opening a formal investigation into
the learning environments at Harvard, UPenn, and MIT and
their policies and disciplinary procedures. This
investigation will include substantial document requests, and
the Committee will not hesitate to utilize compulsory
measures including subpoenas if a full response is not
immediately forthcoming.''
Stefanik is quoted as saying that after ``this week's
pathetic and morally bankrupt testimony by university
presidents when answering my questions, the Education and
Workforce Committee is launching an official Congressional
investigation with the full force of subpoena power into
Penn, MIT, and Harvard and others.''
Ominously, she did not specify what other colleges and
universities would be targeted. ``We will use our full
Congressional authority to hold these schools accountable for
their failure on the global stage,'' she added.
Facing this barrage of threats and criticism, with her job
on the line, Magill relented and apologized for her
testimony:
``In that moment, I was focused on our university's
longstanding policies aligned with the U.S. Constitution,
which say that speech alone is not punishable . . . I was not
focused on, but I should have been, the irrefutable fact that
a call for genocide of Jewish people is a call for some of
the most terrible violence human beings can perpetrate. It's
evil--plain and simple. In my view, it would be harassment or
intimidation.''
Enter Harvard President Claudine Gay
Harvard's president, Claudine Gay, has also come under fire
from donors, students
and alumni over her statements about whether calls for
genocide of Jews would be a breach of Harvard's code of
conduct. Gay testified that this type of speech was
``personally abhorrent to me'' and ``at odds with the values
of Harvard.'' But she added that Harvard gives ``a wide berth
to free expression, even of views that are objectionable,''
and takes action ``when speech crosses into conduct that
violates our policies'' governing bullying, harassment or
intimidation.
The Times reports that Jacob Miller, the student president
of Harvard Hillel, said that ``the testimony yesterday was a
slap in the face, because there was a very easy clear right
answer and she opted not to say that.'' Bill Ackman, the
billionaire hedge fund manager and Harvard alumnus, called on
all three presidents to resign, citing the exchanges over
genocide. ``It depends on the context' and whether the speech
turns into conduct,' that is, actually killing Jews,'' he
wrote on X. ``This could be the most extraordinary testimony
ever elicited in the Congress. They must all resign in
disgrace. If a CEO of one of our companies gave a similar
answer, he or she would be toast within the hour.''
The day after the hearing, Harvard released this statement
from Gay:
``There are some who have confused a right to free
expression with the idea that Harvard will condone calls for
violence against Jewish students. Let me be clear: Calls for
violence or genocide against the Jewish community, or any
religious or ethnic group are vile, they have no place at
Harvard, and those who threaten our Jewish students will be
held to account.''
Her statement did not say what would constitute a threat,
or whether chants of ``There is only one solution: intifada,
revolution'' would meet the definition, as Stefanik argued
during the hearing.
On Fire
The Times quoted a spokesman for the Foundation for
Individual Riqhts and Expression, a free speech advocacy
group, who explained that whether speech rises to the level
of harassment ``is a complicated and fact-intensive issue''
that stems from a pattern of targeted behavior. ``For
example, it's hard to see how the single utterance
Representative Stefanik asked about during the hearing--no
matter how offensive--would qualify given this requirement,''
the spokesman said.
FIRE is correct. Take, for example, Harvard's ``University-
Wide Statement on Rights and Responsibilities.'' It begins by
declaring that the ``central functions of an academic
community are learning, teaching, research and scholarship''
and that by ``accepting membership in the University, an
individual joins a community ideally characterized by free
expression, free inquiry, intellectual honesty, respect for
the dignity of others, and openness to constructive change.
The rights and responsibilities exercised within the
community must be compatible with these qualities.''
The Harvard Policy
The Harvard policy explains that the ``rights of members of
the University are not fundamentally different from those of
other members of society,'' suggesting that First Amendment
norms apply, while adding that the University ``has a special
autonomy and reasoned dissent plays a particularly vital part
in its existence.'' All members of the University ``have the
right to press for action on matters of concern by any
appropriate means'' and the University ``must affirm, assure
and protect the rights of its members to organize and join
political associations, convene and conduct public meetings,
publicly demonstrate and picket in orderly fashion, advocate
and publicize opinion by print, sign, and voice.''
Furthermore, the University:
places special emphasis, as well, upon certain values which
are essential to its nature as an academic community. Among
these are freedom of speech and academic freedom, freedom
from personal force and violence, and freedom of movement.
Interference with any of these freedoms must be regarded as a
serious violation of the personal rights upon which the
community is based.
Finally, the policy makes clear ``that intense personal
harassment of such a character as to amount to grave
disrespect for the dignity of others be regarded as an
unacceptable violation of the personal rights on which the
University is based.''
It is immediately apparent--and should have been apparent
to the White House, members of Congress, Governor Shapiro,
and the rest of the critics--that Magill and Gay were
accurately reflecting the complex analysis required to
determine when free speech crosses the line into prohibited
harassment, threats, or violence.
Magill was indeed correct that ``if the speech turns into
conduct, it can be harassment,'' that ``if it is directed and
severe, pervasive, it is harassment,'' and therefore, calling
for the genocide of Jews ``can be harassment.''
She had the audacity to explain that it would depend on all
the facts and circumstances.
Gay was indeed correct that calls for the genocide of Jews
are ``personally abhorrent'' and ``at odds with the values of
Harvard.'' And she was also correct that Harvard gives ``a
wide berth to free expression, even of views that are
objectionable,'' and takes action ``when speech crosses into
conduct that violates our policies'' governing bullying,
harassment or intimidation.
Apparently, her sin was trying to explain freedom of speech
to Congress and the American people.
The Supreme Court and federal law make clear that for
speech in the educational setting to constitute
``harassment'' sufficient to result in expulsion or other
discipline, it must be ``so severe, pervasive, and
objectively offensive that it effectively bars the victim's
access . . . to an educational opportunity or benefit.''
Had Stefanik and her colleagues taken the time to
familiarize themselves with the current law on free speech
and framed their questions in terms of the legal definition
of ``harassment,'' they would have found common agreement
with all three presidents. Had all the critics done their
homework instead of spreading misunderstanding about free
speech on campus, they would have embraced and applauded how
these university presidents skillfully condemned what they
called the ``pernicious, viral evil'' of antisemitism and the
``abhorrent'' calls for genocide of Jews, while upholding
``academic freedom and the free exchange of ideas'' which
ensure ``a wide berth to free expression, even of views that
are objectionable.''
Enter the American Association of University Professors
The American Association of University Professors' policy,
On Freedom of Expression and Campus Speech Codes, adopted
almost thirty years ago, reminds us that ``[f]reedom of
thought and expression is essential to any institution of
higher learning'' in order to inspire ``vigorous debate on
those social, economic, and political issues that arouse the
strongest passions. In the process, views will be expressed
that may seem to many wrong, distasteful, or offensive. Such
is the nature of freedom to sift and winnow ideas.''
On a campus ``that is free and open, no idea can be banned
or forbidden. No viewpoint or message may be deemed so
hateful or disturbing that it may not be expressed. Hostility
or intolerance to persons who differ from the majority
(especially if seemingly condoned by the institution) may
undermine the confidence of new members of the community.''
The AAUP notes:
In response to verbal assaults and use of hateful language,
some campuses have felt it necessary to forbid the expression
of racist, sexist, homophobic, or ethnically demeaning
speech, along with conduct or behavior that harasses. Several
reasons are offered in support of banning such expression.
Individuals and groups that have been victims of such
expression feel an understandable outrage. They claim that
the academic progress of minority and majority alike may
suffer if fears, tensions, and conflicts spawned by slurs and
insults create an environment inimical to learning.
And while these ``arguments, grounded in the need to foster
an atmosphere respectful of and welcoming to`all persons,
strike a deeply responsive chord in the academy,'' the AAUP
acknowledges ``both the weight of these concerns and the
thoughtfulness of those persuaded of the need for regulation,
rules that ban or punish speech based upon its content cannot
be justified.''
The AAUP continues, `An institution of higher learning
fails to fulfill its mission if it asserts the power to
proscribe ideas--and racial or ethnic slurs, sexist epithets,
or homophobic insults almost always express ideas, however
repugnant. Indeed, by proscribing any ideas, a university
sets an example that profoundly disserves its academic
mission.''
The AAUP cites what the Supreme Court stated when it
rejected criminal sanctions for offensive words:
[W]ords are often chosen as much for their emotive as their
cognitive force. We cannot sanction the view that the
Constitution, while solicitous of the cognitive content of
individual speech, has little or no regard for that emotive
function which, practically speaking, may often be the more
important element of the overall message sought to be
communicated.
The AAUP further warns that a college or university:
sets a perilous course if it seeks to differentiate between
high-value and low-value speech, or to choose which groups
are to be protected by curbing the speech of others. A speech
code unavoidably implies an institutional competence to
distinguish permissible expression of hateful thought from
what is proscribed as thoughtless hate.
Moreover, the AAUP says, ``banning speech often avoids
consideration of means more compatible with the mission of an
academic institution by which to deal with incivility,
intolerance, offensive speech, and harassing behavior,'' such
as adopting and invoking ``a range of measures that penalize
conduct and behavior, rather than speech--such as rules
against defacing property, physical intimidation or
harassment, or disruption of campus activities,'' the
development of ``courses and other curricular and co-
curricular experiences designed to increase student
understanding and to deter offensive or intolerant speech or
conduct,'' and condemning ``manifestations of intolerance and
discrimination, whether physical or verbal.''
The AAUP concluded by noting that:
[to] some persons who support speech codes, measures like
these--relying as they do on suasion rather than sanctions--
may seem inadequate. But freedom of expression requires
toleration of ``ideas we hate,'' as Justice Holmes put it.
The underlying principle does not change because the demand
is to silence a hateful speaker, or because it comes from
within the academy. Free speech
is not simply an aspect of the educational enterprise to be
weighed against other desirable ends. It is the very
precondition of the academic enterprise itself.
The Free Speech Golden Rule
Aryeh Neier, former executive director of Human Rights
Watch, was born in Nazi Germany and became a refugee at two
years old when his family fled in 1939. He was national
director of the ACLU at the time of the Skokie controversy
when the ACLU defended the right of American Nazis to conduct
a march in that predominantly Jewish community.
In his book ``Defending My Enemy: American Nazis, the
Skokie Case, and the Risks of Freedom,'' he explained why a
Jew would defend the Nazis:
Because we Jews are uniquely vulnerable, I believe we can
win only brief respite from persecution in a society in which
encounters are settled by power. As a Jew, therefore,
concerned with my own survival and the survival of the Jews--
the two being inextricably linked--I want restraints placed
on power. The restraints that matter most to me are those
that ensure that I cannot be squashed by power, unnoticed by
the rest of the world. If I am in danger, I want to cry out
to my fellow Jews and to all those I may be able to enlist as
my allies. I want to appeal to the world's sense of justice.
I want restraints that prohibit those in power from
interfering with my right to speak, my right to publish, or
my right to gather with others who also feel threatened.
Those in power must not be allowed to prevent us from
assembling and joining our voices together so we can speak
louder and make sure that we are heard. To defend myself, I
must restrain power with freedom, even if the temporary
beneficiaries are the enemies of freedom.
It is high time elected officials and other critics of free
speech begin to embrace and defend the Free Speech Golden
Rule: Protect the free speech of others as you would have
them protect your free speech.
We are going down a very dangerous path if we set a
precedent and empower government officials or college
administrators to silence, expel, discipline, or criminally
punish students for uttering hateful speech that most of us
find vile and shameful but that falls short of legally
proscribable incitement, true threats, or harassment. Armed
with such awesome powers of censorship, there is no telling
when different government officials or different college
administrators with different political agendas will find
what the rest of us say to be vile and shameful and silence
and punish us.
To defend ourselves, we must restrain power with freedom,
even if the temporary beneficiaries are the enemies of
freedom.
Mr. Speaker, the statement says that Gay was indeed correct on calls for genocide of Jews were personally abhorrent and at odds with the values at Harvard. She was also correct that Harvard gives wide berth to free expression, even to views that are objectionable and takes action when free speech crosses into conduct that violates our policies. Apparently, her sin was trying to explain freedom of speech to Congress and the American people.
The Supreme Court and Federal law makes clear that speech in educational settings constitutes harassment sufficient to result in expulsion or other discipline must be so severe, pervasive, and objectively offensive that it effectively bars the victim's access to the educational opportunity.
Had Stefanik and her colleagues taken time to familiarize themselves with the current law on free speech and frame their questions in terms of the legal definition of harassment, they would have found common agreement with all three presidents.
Mr. Speaker, I condemn anti-Semitism. I condemn calls for genocide of Jewish people. I guess in this context, that has to be repeated over and over again. I am also concerned about the polarization of college campuses and the disturbing rise of discrimination and incidents on college campuses.
As I have noted, I am skeptical of the majority's newfound concerns about anti-Semitism on college campuses because, as I said in 2017, after white supremacists marched through the University of Virginia grounds shouting, ``Jews will not replace us,'' I do not recall the same level of outrage. In fact, I note the endorsement of the one who declared that there were good people on both sides. I wrote a letter to the majority requesting a congressional hearing at that time, and our calls went unanswered.
Mr. Speaker, I concede that the university presidents' testimony last week, when taken out of context, fell under the First Amendment trap that when you suggest that speech is protected, therefore, you must agree with it. No, you can believe that speech is protected but also believe that it is reprehensible. Calling for genocide of Jews is reprehensible in all contexts, but it could also be protected.
Mr. Speaker, they answered the question the way Professor Fried said that he would have been professionally obligated to respond, but answering the question as posed should not warrant calls for his resignation.
We need to do everything we can do under the law to address anti- Semitism, Islamophobia, racism, homophobia, and other forms of discrimination. This resolution fails to do anything to establish standards that can address reprehensible divisions in our society and on college campuses.
Mr. Speaker, I include in the Record an article titled, ``President Gay Was Right: Context Matters.''
President Gay Was Right: Context Matters
(By Charles Fried)
Since their appearances before the House Committee on
Education and the Workforce, the presidents of Harvard, the
University of Pennsylvania, and MIT have been subject to a
barrage of hostile criticism in the media, including from
constitutional scholars known for their advocacy for free
speech.
When asked whether they would discipline students (or, I
suppose, faculty) if they called for the genocide of Jews,
each president responded that the answer depends on the
context of the utterances.
I have taught at Harvard Law School since 1961 and began
practicing before the Supreme Court in 1985--for four years
as Solicitor General of the United States--and I would have
felt professionally obligated to answer as the presidents
did. It does depend on the context.
In the 1969 case Brandenburg v. Ohio, the Supreme Court
ruled unanimously that ``constitutional guarantees of free
speech and free press do not permit a State to forbid or
prescribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action.''
Now, many--perhaps most--constitutional democracies do not
go this far, and courts in some nations, including Canada,
France, Germany, and South Africa, have allowed criminal
prosecution for what may compendiously be called hate speech.
But our Supreme Court has never deviated from its principle
of incitement.
Even in the case that strayed the furthest from this
standard--the 2010 decision in Holder v. Humanitarian Law
Project, which upheld the statute that makes it a federal
crime to knowingly provide ``material support or resources to
a foreign terrorist organization''--Chief Justice John
Roberts '76 was careful to carve out free speech from the
ruling.
In that decision, he wrote that, under the statute,
Americans ``may say anything they wish on any topic'' so long
as they do not speak or write ``to, under the direction of,
or in coordination with foreign groups that the speaker knows
to be terrorist organizations.'' The three dissenters would
have gone further in protecting the organizations' speech.
To be clear, governments may withhold benefits from
American members of foreign terrorist organizations under
certain circumstances, and certainly governments may declare
official positions condemning such organizations and their
principles. But none of this includes criminal sanctions.
Speech itself is, indeed, well-protected.
The three university presidents head private institutions
that are not bound in every respect by federal constitutional
constraints. But each institution in various ways has
declared itself committed to protecting First Amendment
values over the years. So it is not surprising that their
presidents would have answered that whether they would
discipline or expel students for advocating genocide depends
on the context.
If one seeks to follow constitutional principles, answering
this question certainly does depend on the context.
In 1991, prompted by an incident in which Harvard students
hung Confederate flags outside their dorm windows, University
President Derek C. Bok penned an essay defending the rights
of the students to display offensive messages.
He directly linked Harvard's free speech guidelines to
First Amendment principles, writing that he had ``difficulty
understanding why a university such as Harvard should have
less free speech than the surrounding society--or than a
public university.''
I must admit that I have never seen such flags in recent
times. Yet, even today, under the circumstances Bok faced, if
I were a university president pressed to answer yes or no
whether the student speech in question would subject the
students to discipline, I would have to reply that, yes, it
depends on the context.
The lead questioner, Representative Elise M. Stefanik '06,
sought to lay a rhetorical trap for the three university
presidents. But I doubt Stefanik is as principled as she
purports to be.
Were the facts of the event before President Bok 30 years
ago to recur and the administration to fail to discipline the
display of Confederate flags, would Representative Stefanik
have had the same reaction? I doubt it.
Mr. Speaker, I oppose this resolution. I urge my colleagues to vote ``no,'' and I yield back the balance of my time.