University of Pennsylvania president Liz Magill was forced to resign over the weekend amid widespread backlash resulting from her testimony on Capitol Hill last week in a congressional hearing on campus antisemitism. That has hardly put the issue to rest. The viral video of questioning by Rep. Elise Stefanik, a New York Republican, and the resulting furor that led to Magill's ouster, have ignited discussions about exactly how much educational institutions can or should restrict free speech.
Magill, who had led the Ivy League school for less than two years, stepped down on Saturday. The chair of Penn's board of trustees, Scott Bok, announced the decision in a letter and also submitted his own resignation. Magill was forced out after struggling to give a clear answer to a question, during a House education committee hearing, on whether calls for genocide against Jewish people would violate Penn’s code of conduct.
"One down, two to go," Stefanik posted on X, an apparent reference to Harvard president Claudine Gay and MIT president Sally Kornbluth, who also testified at the hearing.
After Magill's comments, six members of Congress from Pennsylvania sent a letter to the school's board of trustees calling for her resignation. Ross Stevens, a hedge fund manager and major Penn donor, threatened to withdraw a $100 million gift to the university.
There has been considerable division of opinion about Magill's resignation and its consequences, not all of it along predictable partisan lines. While many people, including many Democrats, have agreed that she could no longer lead a major university, others see this incident as a setback for free speech, warning about the potential threat to academic freedom and open debate. Many such concerns revolve around the impact of external influence from donors and politicians shaping campus codes of conduct and discourse.
Protecting speech that “falls short of misconduct” is “particularly important” in situations where “critical social and political discussions” take place, Alex Morey, an attorney at the Foundation for Individual Rights and Expression, told Salon. That's even true, or especially true, she said, when such discussions involve rhetoric that ideological opponents find “very offensive and hateful.”
“We cannot shut down one side,” Morey continued. Even when free speech is likely to be upsetting or distressing to many people, "that doesn't mean we should empower the government or college administrators to decide which side is right. That's what any First Amendment analysis is about at its core.”
The legal requirements are somewhat different for different kinds of educational institutions, Morey explained. Public universities are required by the First Amendment to respect free expression on campus, while private institutions like Penn, Harvard or MIT have committed to similar principles and are generally required to honor those promises under a contract law theory.
Such promises are “critical” to a university's mission of “truth-seeking and knowledge building,” Morey added, which requires an environment where a variety of viewpoints can be “raised, debated and discussed."
Frederick Schauer, a free speech scholar at the University of Virginia School of Law, elaborated on Morey's point that major private colleges and universities, including Ivy League schools like Penn, have voluntarily chosen to adhere to First Amendment principles although they are not legally required to. But he's not sure that's the right standard.
The First Amendment is clearly understood to protect the free speech rights of neo-Nazis, the Ku Klux Klan, protesters who advocate violence against the LGBTQ community and “many other despicable people saying despicable things,” Schauer said. Given that, he suggests, colleges and universities “should consider” how much of the First Amendment they want to “take on board.”
“If there are things that we wouldn’t and shouldn’t permit in a seminar of 16 students, is a college campus more like a seminar or more like a public park?” Schauer asked. “There are arguments both ways, but it is certainly not obvious that all of the constraints that are properly applied to government should be applied to non-governmental colleges and universities.”
While the ambiguous answers offered on Capitol Hill by Magill, Gay and Kornbluth clearly distressed many people, Schauer says they weren't entirely wrong: Whether and when expressing sympathy with a morally loathsome act like genocide is “legally proscribable” does indeed vary with context, in his view. Under some circumstances such comments might represent a threat, but only if directed at particular people. The legal definition of “proscribable incitement,” Schauer said, is “very, very narrow.” While “advocating genocide against a group as a general proposition is morally despicable," it is also "legally protected under the First Amendment."
“True threats,” Morey explained, are statements where the speaker makes a “serious expression” of an intent to commit an unlawful act of violence. Discriminatory harassment is “unwanted speech” directed at a specific student or group that is “so severe, pervasive and objectively offensive” that it denies the student or victim access to an educational opportunity or benefit.
Those categories of speech can reasonably be restricted, Morey said, but “broad calls for Palestinian liberation on an American college campus" are unlikely to clear those bars. Similarly, student protesters chanting slogans like "Intifada" or "From the river to the sea" is "almost always" going to be interpreted as protected speech, she said, "even though some interpret those as calls for genocide against one side or another."
She continued: "Our democracy prizes the widest open discussion on these important political issues. There is no ban on calls for genocide. ... Plenty of people think statements like ‘Women deserve bodily autonomy’ is a call for genocide against the unborn, or that saying ‘There are two genders’ is a call for trans genocide, or that an IDF officer defending the war in Gaza is calling for Palestinian genocide.”
The First Amendment protects a far wider range of speech than most people realize, “for good and important reasons” that benefit everyone on all sides of the current debate, whether they're pro-Israel or pro-Palestinian or hold other views, Morey added.
On Friday, more than 70 members of Congress from both parties signed a letter calling for the resignation of Gay and Kornbluth, who both had similar struggles to Magill's in answering Stefanik's questions about the schools' code of conduct.
Stefanik called Magill's resignation "the bare minimum" of consequences and promised that universities “can anticipate a robust and comprehensive Congressional investigation of all facets of their institutions' negligent perpetration of antisemitism.”
Schauer suggested that much of the criticism directed at the three college presidents is about “public relations more than about law,” and about how “we should condemn that which we might nevertheless protect."
Lee Kovarsky, a University of Texas law professor, told Salon that it's time for a “reckoning” about what he called the “differential treatment of Jewish vulnerability” on university campuses. But that's a “complex conversation,” he continued, one that involves different kinds of problems at different institutions.
“We need to address that problem without locking down the rights to speech and expression of other groups. It should be possible to do both of those things at once," Kovarsky said, while expressing "grave doubts" that the current scenario is likely to lead to that outcome.
Even if people approve of Magill's resignation, or support the potential ousters of Gay and Kornbluth, they should be “wary of a world of donor-influenced speech policies,” Kovarsky added. While a college or university's donors are significant stakeholders and possess a "categorical right" to decide the use of their funds, he said, their involvement should not extend to an "outsized influence on speech codes."
The national controversy over Stefanik's antisemitism hearing has been “fascinating” and “upsetting” for campus speech advocates because of the “hypocrisy on display,” Morey said. These college presidents have suggested that they follow speech-protective university policies at all times, she said, when “nothing could be further from the truth.”
Elite institutions have frequently limited various forms of campus speech, Morey continued, which are often “way less inflammatory” than the proposed example of calling for Jewish genocide. Leaders like Gay and Magill have invoked the First Amendment inconsistently, she said, to protect forms of speech they perceive as popular among certain segments of the campus community.
Free speech policies and norms can "only benefit" campuses when they're applied "neutrally," Morey said. “What happens on campus doesn't stay on campus. That's the whole point. If students learn democratic norms like free expression and due process," or learn "the benefits of talking across lines of difference and giving people the benefit of the doubt ... they'll bring those skills to our society when they graduate. If they learn authoritarianism — ceding their rights to those in power, censorship, suppression, othering, fear — they'll bring that to us, too."
“We sometimes have to hear speech we hate, because the alternative is turning the power to decide over to whoever's in power at the time.”
