Six days ago, on December 5, the Presidents of three elite universities — Harvard, Penn and MIT — appeared at a Congressional hearing to testify about their responses to pro-Hamas and anti-semitic demonstrations and advocacy on their campuses. In the most widely-viewed exchange at the hearing, Rep. Elise Stefanik asked each of the Presidents whether “calling for the genocide of Jews” violated their codes of conduct. The three answered by emphasizing the importance of freedom of speech on their campuses, and by saying that they could not give a definitive answer as to whether calling for genocide of Jews violated their codes of conduct, because the answer was “context-dependent.”

Over the intervening days, the responses of the three Presidents have generated widespread backlash, including harsh criticism from even some mainstream press sources, and even pushback from some major donors. The Presidents’ responses appeared to be, and were, tone deaf and highly legalistic. But were they wrong?

This may surprise you, but I’m going to stand up for the three Presidents on this particular point. If you have been a reader here for any substantial period, you know that I am close to what may be called a “free speech absolutist.” I think that people ought to be able to say even the most hateful and despicable things, short of immediate threats of violence. By saying such things they discredit themselves, and for the government (or a university or corporation) to claim the power to shut them up is an even worse problem than allowing the speech.

The problem with the statements of the three Presidents is not their position as to upholding freedom of speech for the pro-Hamas and anti-semitic speakers. The problem is that the Presidents don’t apply the same true free speech principles at all when it comes to political opinions with which they disagree, or that are out of line with current woke orthodoxy. Their claim to be real defenders of freedom of speech is completely bogus, and everybody knows it. In fact, they are active speech suppressors on dozens of important topics. Their claim to have suddenly discovered the importance of freedom of speech in the context of supporters of people who behead babies makes them look completely ridiculous and morally reprehensible, which they are.

To the great credit of our Supreme Court, it has drawn the line as to speech that can be regulated by the government at a point that gives near complete license to speakers, even hateful ones. Note that a private university does not need to follow the freedom of speech principles that apply to the government. Thus, for example, a private university can be explicitly anti-semitic if it wants to be — at the risk of losing most of its students and financial support. But if a university proclaims that it supports the principles of robust freedom of speech in accordance with the First Amendment, the public should rightfully expect that it follows principles at least close to, if not the same, as those that the Supreme Court has articulated as restricting the government.

For a concise statement of what those principles of robust freedom of speech are, I recommend this L.A. Times op-ed from yesterday by Eugene Volokh and Will Creeley. For those who don’t recognize his name, Eugene Volokh is a Professor at UCLA Law School and a bona fide top authority on Supreme Court First Amendment law. For a number of years I served on the Executive Committee of the Freedom of Speech Section of the Federalist Society, and Eugene was the Chairman. I was somewhat of an interloper on that Committee, but Eugene is the true expert.

Here are some key excerpts from the Volokh/Creeley piece (I recommend the whole thing if you want a deeper understanding of First Amendment law on this subject):

[I]f freedom of expression is to survive on American campuses — and for our nation’s vitality, it must — Magill’s original answer was right. Context does matter. The categorical exceptions to the 1st Amendment are few, narrow and carefully defined by precedent. And while Penn is a private university not bound by the 1st Amendment, its policies commit the school to 1st Amendment standards. . . .

Under the 1st Amendment, speech intended to and likely to cause imminent illegal conduct is unprotected “incitement.” Discriminatory harassment targeting particular students isn’t protected. True threats — serious expressions of an intent to engage in illegal violence against a particular person or group of people — aren’t protected. Promising to “bring an assault rifle to campus and shoot all you pig jews,” as a Cornell student allegedly did in October, is a punishable true threat. Whether other statements are constitutionally protected does turn on context. . . .

The 1st Amendment doesn’t have an “advocacy of genocide” exception, nor do the promises of student free speech that many private universities properly make. And for good reason: Students must be free to debate what is proper to do in war, and what wars are just. . . .

So do Harvard, Penn or MIT allow the same robust freedom of speech for facts and opinions contrary to woke orthodoxy that they allow to the pro-Hamas and anti-semitic protesters? Not even close — it’s the difference between night and day. I’ll give a few examples for your consideration.

Here is my December 16, 2022 blog post, title “Goodnight, Poor Harvard,” written on the announcement that Claudine Gay would become the next President of the institution. The post covered some of Gay’s actions during the time prior to becoming President-designate, when she had most recently been Dean of the Faculty of Arts and Sciences. My conclusion was “The picture emerges of Gay as the enforcer-in-chief of wokist orthodoxy at Harvard.” Examples of Gay’s actions as Dean of FAS:

• Gay was the person directly responsible for derailing the career of Harvard’s hottest young black professor, economist Roland Fryer. Go to my December 2022 piece for details, but here is the summary. Fryer had committed the mortal sin of publishing research (in 2016) which found “no racial differences” in police use of force in places where he collected data. The next year (2017) a personal assistant lodged a complaint with Harvard about alleged improper sexual conduct by Fryer, which however involved no allegations of requests for sex or of unwanted touching, but rather basically a small number of off-color jokes. An investigation by a Harvard committee (Office for Dispute Resolution) found most of the charges baseless, and for the remaining handful recommended some “sensitivity training.” Then Gay intervened, and sought the revocation of Fryer’s tenure — basically, that he be fired. Ultimately, that sanction was not supported by Harvard’s then President, but Fryer got a two year suspension without pay and his research lab was closed. For some reason that I cannot understand, Fryer appears to still be at Harvard.

• Then there’s the case of Ryan Enos. Enos, a professor of political science, came up with some research (also published in 2016) supportive of the woke narrative, namely that demolition of public housing in Chicago demonstrated a “racial threat” theory of political behavior. Again, go to my December 2022 piece for details. In 2018 an anonymous whistleblower emerged who accused Enos of altering data to make the research come out as he wanted. The report was leaked in 2022. At that point it emerged that the complaint had been referred to something at Harvard called the Committee on Professional Conduct but, at the instance of Gay, the CPC had issued a letter declining to investigate on the ground that the complaint was not within its “purview.” But the CPC’s own website states as part of its portfolio that it handles “allegations of research misconduct involving FAS investigators.”

At Gay’s Harvard, if your speech supports the conservative position, the thinnest allegation against you can destroy your career. If you support the woke narrative, even the most explosive allegations against you can be buried.

Here are a couple more examples from Harvard from the Washington Examiner, December 7:

• Last year, . . . a Title IX training at Harvard reportedly instructed students that refusing to use an individual's preferred pronouns could violate the school's code of student conduct and result in discipline.

• In 2021, Harvard professor Carole Hooven faced intense backlash from a university diversity, equity, and inclusion official for stating that biology determines whether a person is male or female. The on-campus reaction to Hooven's scientific statements was so severe that she was forced to take a leave of absence from the university.

And from the same piece in the Examiner, here’s a good one from the University of Pennsylvania:

• In 2022, members of the women's swim team at the University of Pennsylvania were told not to speak to media outlets about Lia Thomas, a biological male who identifies as female and was competing as a woman, eventually winning a national championship that year.

Many more such examples can easily be found. Try to speak out against Covid vaccines or climate change orthodoxy on an Ivy League campus, and see what happens to you. Meanwhile, don’t expect any sanctions to be imposed on pro-Hamas or anti-semitic protesters. The supposed defense of robust free speech by these university Presidents is completely phony.

I’m hoping that some conservative students at these campuses will seize the moment. Now is the time to invite Heather Mac Donald or Charles Murray to campus!

UPDATE, December 12: It has come to my attention that there is a petition on this subject, dated December 10, addressed to Harvard’s Board, that has thus far been signed by more than 750 Harvard faculty members. Here is the full text:

We, the undersigned faculty, urge you in the strongest possible terms to defend the independence of the university and to resist political pressures that are at odds with Harvard’s commitment to academic freedom, including calls for the removal of President Claudine Gay. The critical work of defending a culture of free inquiry in our diverse community cannot proceed if we let its shape be dictated by outside forces.

I love the central phrase “Harvard’s commitment to academic freedom,” an obvious term of art that all insiders would have to understand to refer to the disparate treatments of pro-Israel versus pro-Hamas members of the community, as well as of Fryer and Enos, and of conservative versus liberal speech generally. Looking at the list of signers, right at the top at number 3 (and therefore likely one of the organizers of the effort) is none other than Ryan Enos! This is how deep the rot at Harvard has gone.