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What the vexed history of campus hate speech codes teaches us about fighting antisemitism_INSIGHT

The war between Israel and Hamas has divided college campuses and unleashed a wave of anger at leaders in higher education for failing to denounce terrorism and suppress antisemitism.

A raft of incidents have left Jewish students feeling unsafe, including online threats to attack Jewish students at Cornell, pro-Palestinian students pounding on the doors of the library at Cooper Union with Jewish students inside, a Jewish student injured at Tulane while confronting a protester burning an Israeli flag, and statements by student organizations at Harvard and faculty members at Yale, Columbia, Cornell and elsewhere appearing to endorse or excuse Hamas’s brutal October 7 terrorist attacks.

Confronted with escalating demands for action, college and university presidents have issued statements condemning antisemitism and Islamophobia and launched antisemitism task forces. In the heat of the moment, however, many critics are demanding that administrators sanction students and fire faculty who use hateful rhetoric in criticizing Israel or supporters of Israel.

We have been down this road before, and it does not end well. Under First Amendment principles, which govern public institutions and have been adopted by most private colleges and universities, speech is protected unless it constitutes a true threat, incitement to imminent unlawful action, or harassment. In the 1990s, over 300 colleges and universities adopted codes intended to restrict hate speech. Recognizing that hate speech cannot be restricted without censoring ideas or punishing people for their political views, courts almost always found these codes unconstitutional.

Because there is not, and almost certainly cannot be, a consensus definition of hate speech, college codes were vague and overbroad, chilling expression well beyond racist or bigoted sentiments. In many cases, the codes were used against those they were intended to protect.

At the University of Michigan, for example, in the year and a half its hate speech code was in effect, there were 20 cases in which white students charged Black students with racist speech. The only student subjected to a full disciplinary hearing was a Black student charged with homophobic and sexist expression. Almost inevitably, hate speech codes were enforced in ways that favored those in authority and disempowered “marginalized individuals and groups.” Moreover, 40 years of experience demonstrate that hate speech codes are “ineffective” at best, and, at worst, may actually increase levels of intolerance.

The urge to ban hate speech is understandable. As the American Association of University Professors noted in 1994, the “fears, tensions, and conflicts spawned by slurs and insults create an environment inimical to learning.” Hate speech is an insult to their dignity and undermines their sense of physical and emotional security. But, as the AAUP recognized, these concerns, weighty as they are, cannot justify limits on the freedom of expression that is “the very precondition of the academic enterprise itself.”

The passions generated by the war between Israel and Hamas have prompted many, even some who had been staunch defenders of free speech, to blur the line between conduct that may be prohibited and speech that should be protected.

Government officials have threatened to defund institutions failing to take action against students who blame Israel for Hamas’s terrorist attacks. Some of the nation’s top law firms warned law schools they would not hire their students unless they learned “to engage in the free exchange of ideas … in a manner that affirms the values we all hold dear.” At the University of Pennsylvania, major donors are demanding the resignation of the president, in part because she did not cancel or condemn forcefully enough a faculty-organized Palestinian literary festival that included speakers with a history of antisemitic remarks. In an open letter to Harvard University, Mitt Romney and other prominent alumni demanded that leaders prohibit “hatred” as well as threats and violence.

And some colleges and universities have complied. Brandeis University, for example, recently warned that it would cut ties to student organizations and professional associations supporting the Boycott, Divestment and Sanctions movement, because it “aims to dismantle the Jewish state.” Brandeis also derecognized its campus chapter of Students for Justice in Palestine because “SJP openly supports Hamas … and its call for the violent elimination of Israel and the Jewish people.” Emory University placed a faculty member on administrative leave pending an investigation into antisemitic comments made on a private social media account. NYU launched an investigation of a student who blamed Israel for the October 7 Hamas attacks.

We share the disgust so many feel at seeing rallies or statements condoning terrorism, promoting antisemitism or calling for violence against Jews or the destruction of Israel. Most of the rhetoric at issue, however, does not meet the very high standards for true threat, incitement to imminent violence or harassment.

So, what should colleges and universities do?

First and foremost, college and universities must ensure student safety, which may include increasing the police presence on campus and regulating, in a content-neutral way, where and when protests may be held. Disciplinary processes, including criminal prosecution where appropriate, should be used aggressively against speech that crosses the line into true threats, incitement or harassment.

Colleges and university leaders should educate their students about the harms of hate speech and condemn it when it appears. They should encourage students and faculty to join them in denouncing speech that violates community norms and supporting a campus culture in which all members of the community are treated with respect.

Colleges and universities should ensure that efforts to combat antisemitism, Islamophobia and other forms of religious intolerance are an integral part of campus diversity, equity and inclusion programs, starting with orientation.

When hate speech surfaces on campus, college and university leaders should offer assistance to the individuals most affected, which might include meeting with students and student organizations, offering counseling and attending vigils and other events to show support.

The temptation to suppress speech is always strongest in moments of crisis. But that is when the need to protect speech is greatest, when, in the words of Justice Oliver Wendell Holmes, we must ensure “not free thought for those who agree with us, but freedom for the thought that we hate.”

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. David Wippman is President of Hamilton College.

Copyright 2023 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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