Opinion | Yes, Context Matters

Less than a month after three university presidents testified on Capitol Hill in December about campus antisemitism, two of them—Elizabeth Magill of the University of Pennsylvania and Claudine Gay of Harvard—had resigned. While there is no doubt that in their congressional testimony they failed to “read the room” and spoke as lawyers, not moral leaders, the outrage over their comments was arguably mostly virtue-signaling. It ignored the central question: Is it true that, as one MIT professor suggested, “some thoughts are too awful to be stated,” and that speaking such thoughts on campus should call for discipline or expulsion, not the protections of free speech?

This subject is vast and complex, but five questions may help sort it out.

Are calls for genocide actually occurring?

Few if any explicit calls for genocide as such have been cited. Rather, genocidal intent is inferred from fiery and often abhorrent language. But this gets tricky. If calls for genocide are “fighting words” unworthy of First Amendment protection, does it matter what the speaker intends to say, or merely what the hearer perceives? Is the slogan “from the river to the sea” a call for genocide (as Jews fear) or for a one-state solution (as some protesters say)? Does a call for “resistance” demand genocide or simply oppose occupation? In December, Israeli pundit Hen Mazzig wrote in Newsweek that “calling for a cease-fire is an antisemitic demand that Jews embrace our own genocide.” Because he believes that, should students who call for a cease-fire be expelled?

Going further, some Israelis have claimed that the mere call for an independent Palestinian state is a prescription of genocide for Jews, or that opposition to West Bank settlements is support for the destruction of the Jewish people. Campus administrators seeking to punish calls for genocide could thus face an impossible task. As Penn education professor Jonathan Zimmerman has written, “We should all be ready for an infinite regress of charges and countercharges about what is, or should be seen as, a genocidal statement.”

Are campuses unsafe?

If supposedly genocidal speech is to be censored, one reason is that universities have a duty to ensure student safety. Traditionally that has meant physical safety. But lately this appropriate concern for physical safety has been transformed into a right to feel comfortable. One campus rabbi told The Forward that her Jewish students today “feel unsafe emotionally.” A University of Chicago senior “feels assaulted by rhetoric” because someone who sits behind her in class has a sticker on her laptop that says “Free Palestine, Destroy Israel.” Is this the kind of “safety” for which we are prepared to jettison free speech?

Does context matter?

Asked by Representative Elise Stefanik of New York whether a call for genocide violated universities’ codes forbidding bullying and harassment, one president notoriously answered, “It is a context-specific decision, Congresswoman.” But in a sense she was correct. Is the call for killing an ethnic group—Tutsis in Rwanda, Jews in Israel, Rohingya in Myanmar—speech or conduct? The Constitution would view it as speech, and therefore protected, unless directed to specific individuals. Private universities are not required to follow First Amendment criteria, but their own codes of student behavior promote free speech and academic freedom while also prohibiting the bullying and harassment of specific individuals. A call for genocide—in the abstract or in Israel—may make students feel emotionally unsafe. It’s offensive and unpleasant for a Jewish student to hear hateful language about Israel on campus—or, for that matter, to take a class on modern German history and be assigned Hitler’s deranged diatribes as reading. But how much weight should be given to these subjective emotional feelings in determining whether a specific experience constitutes bullying or harassment? This is why each case has to be context-specific.

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Does hypocrisy matter?

There is clearly a great deal of it. Students have been disciplined and faculty fired because of offenses on issues related to sex and race. Speeches have been canceled because the speaker’s political views offended or simply made some students uncomfortable, and claims of microaggression have been used to suppress speech further. Most of those canceled have been on the right, and one could well say that what goes around comes around. It is good to call this hypocrisy out. But one should not make public policy on the basis of schadenfreude.

What is to be done?

Universities must ban physical harassment and disruption and make no excuses for any violent protest, however admirable the cause. They should bring student groups in before a protest and make clear what is allowed and disallowed, maybe offering an FAQ with examples. Further, specifically on Israel-Palestine, universities should proactively sponsor small-group discussions of the conflict between partisans where students can debate and discuss openly with professors as facilitators to at least understand each other’s perspectives. No doubt these meetings will be extremely uncomfortable for all—as they should be.

In the end we need to step back and not make Israel-Palestine disputes part of the culture wars. You can expect emotional comfort in your sorority or country club, but not in a university. As Steven Pinker of Harvard has wisely pointed out, the response to double standards is to have one standard—free speech. And further, on campuses, we should keep the peace through intensive dialogue that at least strives to broaden understanding and recognize the perspectives of others.

Marshall Breger teaches law at The Catholic University of America.