The anti-Israel protests roiling Columbia University and other elite institutions have eroded trust and fellow feeling among students, faculty, and administrators. Many Jewish students have naturally interpreted slogans like “Globalize the Intifada” as expressions of genocidal intent. This and the broader fallout from Hamas’s October 7 attack have prompted calls from across the political spectrum—and within the halls of Congress—for private universities such as Harvard and Columbia to clarify and potentially reevaluate their speech policies. So far, however, university leaders’ response has not been compelling.
When Congresswomen Elise Stefanik asked then-Harvard president Claudine Gay last December whether calling for the genocide of Jews violated the school’s code of conduct, Gay infamously responded that it “depends on the context.” Her answer seemed evasive and hypocritical, and left observers to wonder whether the Harvard administration had a coherent and consistent speech policy. At a more recent congressional hearing, Columbia University president Nemat (Minouche) Shafik gave a different answer. When asked whether calling for the genocide of Jews violated Columbia’s code of conduct, she replied, “Yes, it does.”
Both Columbia and Harvard are private institutions and can set their own speech policies. Such schools, broadly speaking, have three options in crafting their codes. First, they can provide students with speech rights mirroring those guaranteed by the First Amendment. Second, they can prohibit “offensive” or otherwise unwelcome speech. Third, they can require academic manners of speech on campus. Any private institution must choose from, or strike a balance between, those three options.
The first option, which we’ll call the “First Amendment model,” is the preferred speech policy at most secular private universities in the United States. That policy protects (and restricts) campus speech much the way our courts protect (and restrict) speech in the public square. Harvard president Claudine Gay likely had this model in mind when she refused to give a categorical “yes” or “no” answer to the genocide-advocacy question.
My University of Chicago colleague, Geoffrey Stone, author of “The Chicago Principles,” explains why a First Amendment–embracing private-university president may have struggled to answer Stefanik’s question:
If the University embraces the principles of the First Amendment for public speech, then advocating the genocide of a group in public discourse could not be punished or prohibited unless it creates a clear and present danger that the conduct that is advocated would in fact occur. That is the lesson the [Supreme] Court learned from decades of allowing speech to be prohibited if it advocates unlawful conduct (such as refusing to comply with the draft or attempting to overthrow the government). The real harm from the advocacy of genocide is not that it is likely to cause genocide, but that it is seen as offensive and hurtful. That is not a sufficient justification for prohibiting speech in public discourse. Another concern is that it might cause people to discriminate against or even physically harm Jews. But that doesn’t satisfy the demands of the First Amendment any more than would public speech accusing people who perform abortions of being murderers.
First Amendment principles distinguish between advocacy (which is constitutionally protected) and likely incitement of an immediate and grave harm (which is not), and between verbal harassment directed at a particular group (which is constitutionally protected) and verbal harassment directed at a particular individual (which is not). If Harvard were committed to upholding the First Amendment model (which is doubtful), Claudine Gay would be right to say that context matters in determining whether a call to genocide constitutes prohibited speech.
No university in America today, however, fully embraces First Amendment principles. For example, heckling and shouting, provided it does not deprive anyone of their right to speak, is constitutionally protected speech in the public square but is banned at most private universities.
The second policy option, which acknowledges private schools’ right to regulate the content of on-campus speech, goes beyond most schools’ bans on heckling. This option, which we’ll call the “regulatory approach,” aims to restrict speech that is repellent, alarming, or disparaging of a particular group. Shafik’s recent congressional testimony, in which she endorsed penalties for hurtful or repugnant speech, suggests Columbia embraces the regulatory approach, as private universities are legally free to do.
Is it possible to reduce “offensive” speech without implementing formal sanctions? Harvard professor Danielle Allen thinks so. In the Washington Post, Allen proposed that students abide by the following self-censoring principle: “If the communications you use while protesting would constitute harassment if targeted at a specific individual, the presumption will be that the protest method is likely to create a pattern of generalized intimidation incompatible with a culture of mutual respect.”
While Allen earlier mentions the importance of pursuing appropriate “method[s] of protest,” her self-censoring principle seems to focus on the content of the communications—whether the message in question would constitute “harassment.”
But Allen’s proposed self-censorship policy, and the regulatory approach to which it is a supposed alternative, both stifle debate. Imagine a group of pro-life students who want to hold a protest in Harvard Yard carrying signs that read “Abortion is murder.” Students who have had an abortion may perceive such a message as intimidating and offensive. But should we really encourage or require those pro-life students to “bite their tongue” and self-censor any expression of that message on campus? Is there really a limiting principle for deciding which “offensive” messages should be censored or punished, and which allowed? Would we want to create that type of intellectual “safe space,” where one’s deep assumptions are never challenged, and one is protected from exposure to upsetting or even repugnant alternative points of view?
This raises a third path that private universities can pursue—forbidding manners of speech inconsistent with the schools’ academic purpose. A university’s speech codes, after all, should be driven by its mission. Robert Maynard Hutchins, the former president of the University of Chicago, defined the idea of a “university” positively as “a community of scholars,” but also negatively by reference to the many ways it might lose sight of its mission: “It is not a kindergarten,” he said. “It is not a club. It is not a reform school. It is not a political party. It is not an agency of propaganda.” The university’s central mission makes it clear why, regardless of their content, the collective chanting of political slogans at a partisan political rally might be viewed as alien to the academic life.
This third option, which we’ll call the “manners approach,” reflects those principles. It refuses to regulate the content of speech. Instead, it focuses exclusively on the form of speech and procedures of civil intellectual engagement that define and give character to a free-thinking and critically reasoning academic speech environment. Some manners of speech, such as shouting down invited speakers, are widely recognized to be incompatible with the mission of a university.
After all, why should a private school permit a political demonstration in which slogans are shouted at captive audiences in offices or classrooms within earshot? Such speech events are asymmetric, non-cooperative, and dogmatic. Typically, the discourse scene for the event is aggressively controlled by a group of energized and committed true believers, and neither debate nor dialogue nor discussion nor rational argument is invited or welcome. The manners approach invites private universities to distinguish their quadrangles from a public park or a rally ground. One of the many problems demonstrations like those at Columbia present is that they breach the peace of the university and subvert the trust and cooperation necessary to sustain dialogue and debate in a community of scholars.
Which of these three options—the First Amendment, regulatory, or manners approach—should private universities pursue? In considering the question, they might reflect on Columbia University president Frank Fackenthal’s welcoming remarks to the entering college class on September 25, 1946:
You who have reached the age of advanced study will, of course, have opinions, maybe even prejudices; but acceptance in an academic community carries with it the obligation to submit those opinions and those prejudices to examination under the bright light of human thought and experience. If, perchance, your views have been crystallized into slogans held aloft on banners, or are subject to control by allegiance to minor or major pressure groups, check your banners and your membership cards at the college gate. . . . If when you leave the University on Commencement Day, after having submitted yourself to the processes of true academic life, you wish to have back your old banner, claim it, and you can take your place in the body politic with the deep satisfaction of tested and confirmed judgment. Equally deep can be your satisfaction should you decide not to claim it, for you will know that you have the ability and the willingness to face and to evaluate ideas.
My inclination is in keeping with Fackenthal’s. Private universities should support free and open debate, and their policies should be shaped by a vision of the university as a place of civil intellectual engagement. This naturally excludes certain forms of speech—shouting down a speaker for sure, but also groups of partisans shouting slogans in one-sided rallies and demonstrations of the sort described above. As Columbia today grapples with the aftermath of its disruptive protests, the university should heed its former president’s counsel: the mission of the university is best served by checking your banners (and your megaphones) at the gate.
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