A new McCarthy era

As I learned of the resignation of University of Pennsylvania President Elizabeth Magill on December 9, I could not help but think of the McCarthy era and of people losing their jobs because they deviated from a required orthodoxy of beliefs. Magill's forced resignation was largely a result of her testimony before the House Education Committee. Sadly, she lost her job for correctly stating the law and voicing what the First Amendment requires.

To be clear and emphatic, antisemitism and Islamophobia are a problem on college campuses. I wrote an oped in the Los Angeles Times in late October which began, "I am a 70 year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks." I applaud the efforts of the Department of Education to require campuses to address this.

But I also believe that the law is clear that hate speech, though vile and offensive, is protected by the First Amendment. The Supreme Court has consistently declared unconstitutional laws that prohibit hate speech and has made clear that speech cannot be punished even if it is deeply offensive. As Chief Justice John Roberts declared, "speech cannot be restricted simply because it is upsetting or arouses contempt. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

In the early 1990s, over 360 colleges and universities adopted hate speech codes. These were certainly well intentioned. But every one to be considered by a court was declared unconstitutional. The First Amendment protects the expression of all ideas, even vile ones and even antisemitic and Islamophobic views.

At the hearing on December 5, the three university presidents - from Harvard, MIT, and Penn - were asked about advocacy of genocide of Jews. Each clearly condemned such speech as reprehensible. When asked whether such speech would violate the student code of conduct, and be subject to punishment, President Magill said that it would depend on the context.

She was clearly correct as to the law, but it was not the answer that the members of Congress or the public or the Penn trustees wanted to hear. She was trying to give a logical and nuanced answer to a question that was based on emotion and that was asking for an unqualified declaration that such speech always would be punished. As the president of a private university, she might have said that the First Amendment does not apply at all. But she did not take that route, rightly proclaiming that her university strives to comply with free speech principles.

As Professor Magill and the other presidents -- Claudine Gay of Harvard and Sally Kornbluth of the Massachusetts Institute of Technology -- expressed, there are certainly situations where advocacy of genocide violates the First Amendment. Speech is unprotected by the First Amendment if it constitutes incitement or a true threat or harassment. For incitement, it must be speech that is likely to cause imminent illegal activity and that is directed at causing imminent illegal activity. For true threats, it must be speech that is reckless in that there was a conscious disregard of a substantial risk that the speech would be perceived as a threat of violence.

As for harassment, the official standard promulgated by the Education Department is that campuses must respond when the speech "is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate in or benefit from the recipient's educational program or activity." There is not a clear principle in the law for how to determine when speech is so severe or pervasive as to materially interfere with educational opportunities.

It is easy to imagine situations in which the advocacy of genocide can be punished as incitement or true threats or harassment. But there also are situations in which it is the expression of an idea, albeit a horrific one, that is protected by the First Amendment.

Why not simply say that any advocacy of genocide is so beyond the pale that there is not constitutional protection? There is danger in giving the government the power to say that an idea is so offensive that it never can be expressed. I have heard those who oppose abortion rights call abortion a form of genocide. Do we want to give campus officials, if they agree with that view, the power to silence advocacy of abortion rights? Some have called Israel's action in Gaza genocide. Could a campus then punish students who defended Israel? I am fearful of ever giving the government, including campus administrators, the power to declare any idea as so unacceptable that it cannot be voiced at all.

What would I have said if I had been a witness at the congressional hearing? I would have said that advocacy of genocide of Jews is repugnant, blatantly inconsistent with the values of my school, and must be immediately condemned by campus officials. I would have expressed that as a Jew, who had family members perish in the Holocaust, I am especially sensitive to such advocacy. But I also would have said that the First Amendment protects hate speech and allows all ideas and views to be expressed, including deeply offensive ones. Even advocacy of genocide is within the speech protected by the First Amendment. There, however, also is a point at which the advocacy is so pervasive that it becomes harassment or that it may be expressed in such a way that it is a true threat that is unprotected by the First Amendment.

Would, I, too, have lost my job for saying this, even though I would be correctly stating the law? What are we to make of a moment when a college president can lose her job for doing just that?

There always is a temptation to want to silence and punish the speech we don't like. That is why the analogy to the McCarthy era is apt. It was a time when the desire to fight communism led to many losing their speech for their beliefs and their advocacy. I fear we are at such a time again and Liz Magill was a victim of it.