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Words by Kelli Rudolph with Susan Bruce.
In our previous post, we examined the Trumpian politics and rhetorical background to the US House Education and Workforce committee hearing of 5/12/2023 whose aftermath has now resulted in resignations from two of the US’s most prestigious Higher Education institutions. First to go was Penn’s President, Liz McGill. Claudine Gay, appointed President at Harvard only in July 2023, lasted a few weeks longer, but the drip-drip-drip allegations of plagiarism lodged against her led to her stepping down on the 2nd of January. We also touched briefly upon the increasingly unseemly influence being exerted on private US HEIs by hedge fund billionaires and other rich donors.
Thankfully, the British press is waking up to some of the wider implications of this story and scrutinising more closely than it did before Christmas the activities of people like Bill Ackman and right-wing journalists such as Christopher Rufo.
The British press is also paying much more attention to the connections we drew in our post between the hearing’s purported exposure of antisemitism in the academy and longstanding history of attacks on Diversity, Equity and Inclusion policies, spearheaded in large part by Rufo. Press scrutiny of these forms of attack and argument are a good thing, not least because the same kinds of specious associations are also appearing in right-wing political discourses here in the UK. They are not likely to go away.
As many have now remarked, there is much that the US university presidents might have said in the Hearing that they didn’t say. But they may have been stymied in part by the repeated implication that they should utter one-word answers to the questions put to them. Reading from a (clearly pre-prepared) document, Stefanik first asks: ‘Ms McGill, at Penn, does calling for the genocide of Jews violate Penn’s rules or code of conduct, yes or no?’. In the face of McGill’s attempts to offer a considered rather than simplistic answer (‘It is a context-dependent decision, congresswoman,’ she responds), Stefanik becomes increasingly irate and bullying. ‘It is a context dependent decision?’ Stefanik repeats, in righteous disbelief:
that’s your testimony today? calling for the genocide of the Jews is depending upon the context? (sic) That is not bullying or harassment? This is the easiest question to answer ‘yes’, Ms McGill. So is your testimony that you will not answer, ‘yes’?
But McGill was right. This was not, in a US context, the simple yes and no question Stefanik pretended it was. It might have been, had anyone actually called for genocide and had that call been articulated in a UK rather than a US context. But there are profound differences between the UK and the US in terms of legal protections for free speech.
The US Constitution’s First Amendment free speech clause, to which public university policies must adhere and which private universities choose to implement, orients the discussion differently in the US than in the UK. Unlike the UK, where adjudication of free speech involves examining restrictions imposed by parliamentary acts and common law, in the US such legal restrictions must adhere to the Constitutional protections of free speech. In practice this means that some methods of limiting free speech in the UK would violate First Amendment protections in the US. For example, hate speech deemed illegal in the UK is protected in the US because, as Justice Alito expressed it,
speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’ (Matal v. Tam, 2017).
Exceptions to First Amendment protection in the US are narrow and well-defined. They centre on true threats, solicitation, or incitement of illegal conduct. These exceptions set a necessarily high bar, limiting speech that is nearly inseparable from the unlawful action that follows it. The aim of these limits is to protect individuals from immediate threat to their physical safety, without silencing dissent even when it crosses over to hateful speech. Simply put, there is no ‘calling for genocide’ exception to the First Amendment. The Supreme Court makes clear that:
mere abstract teaching […] of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action (Brandenburg v. Ohio, 1969).
Does Stefanik’s example of ‘calling for genocide’ count among the incitement or true threat exceptions to free speech? Incitement is usually defined as speech intended to and likely to cause imminent illegal conduct. Even if a protester at a rally on a US college campus called for ‘the genocide of the Jews’, as Stefanik phrased it, it would be unlikely to bring about illegal acts by Hamas fighters in Israel. As for the true threat exception, even here, advocacy of genocide in the general terms Stefanik uses falls below the threshold set, in which a ‘true threat’ must be relatively ‘specific as to target’ (U.S. v. Kelner (2nd Cir. 1975)). The same would be true of students chanting ‘from the river to the sea, Palestine will be free’ or calling for intifada at a public protest; both fall under protected speech in the US. A group of students repeatedly and threateningly directing this speech at an individual, by contrast, would be an exception to free speech. This is why both Gay and Magill focused attention in their answers on individuals and context. They were answering within the appropriate first amendment limits and also within the limits on conduct set by the courts in relation to the balance of protection from harassment and the protection of free speech.
This takes us to the final part of Stefanik’s question, whether advocacy for genocide violates ‘rules on bullying and harassment’. The line between harassment and free speech is an unsettled one in the US, but as with advocacy of genocide, ‘there is no categorical “harassment exception” to the First Amendment’s free speech clause’, as Judge Alito put it (Saxe v. State College Area School Dist., 3rd Cir. 2001). In fact, many courts have struck down campus speech codes at public universities that purport to ban harassment precisely because they violate First Amendment rights. The ire of many on the right seems to be directed at these university presidents precisely because they perceive a moral inconsistency in their claims: institutional DEI policies tend to consider speech violent if the person it’s directed at perceives it as such. Now, these presidents were claiming that similar language evoking violence is a form of protected free speech, and the perceptions of offended people were now being deemed invalid.
The Supreme Court’s standard for discriminatory harassment in an educational context makes clear that the conduct must be targeted, unwelcome and ‘so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit’. The US Department of Education (DoE) further emphasises that harassment ‘must include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive.’ In other words, the content of the speech itself – hateful though it may be – does not constitute harassing conduct until it meets the higher threshold of targeted, extreme, and repetitive conduct. There is room for punishing those who target individuals through repeated, extreme speech whether in person or on social media, but simply expressing offensive viewpoints in public cannot be punished as harassment consistent with the First Amendment, even if those who hear these words find them deeply offensive.
But US universities are caught in a further bind. The Secretary of Education Miguel Cardona has rightly committed to combat antisemitism and islamophobia on campuses by enforcing Title VI of the Civil Rights Act, which prohibits discrimination based on ‘shared ancestry or ethnic characteristics’. But universities have been advised in DoE briefings that protected speech including speech that would not meet the definition of harassment set out above ‘can create a hostile environment that universities are obligated to address’. Such guidance suggests that the DoE’s requirements mandate universities to act in ways that have already been ruled unconstitutional. This creates a conundrum for universities who want to uphold both freedom of speech and anti-discrimination principles. Failing to adhere to Title VI requirements not only puts universities at risk of legal liability but also risks the withdrawal of federal funding. (A similar move was made by the UK Secretary of State, Gavin Williamson, who threatened to withdraw government funding from universities who refused to adopt the IHRA definition of anti-Semitism and by Robert Jenrick’s reiteration of that threat in his Telegraph article in December.)
Would UK institutions be able to withstand a political onslaught such as this one? Until 10 March 2024, the OfS has an open consultation on free speech. Arif Ahmed, the new Director for Freedom of Speech and Academic Freedom at the OfS, when asked recently about calls for ‘global intifada’ or the use of slogans like ‘from the river to the sea’ said:
I’d be reluctant to say any particular phrase is always going to be acceptable or always not, because with many of these things it’s going to depend on a variety of factors. I’m definitely not going to say: ‘oh you can always say something or you can never say something,’ for that reason…. There’s always going to be the line between what the law permits and what the law doesn’t permit. Speech that amounts to illegal harassment, stirring up racial hatred, inciting violence, stirring up religious hatred – none of that would be protected.
Here too the call for nuance and context is key. Ahmed’s insistence that there is a line between what is and what is not permitted by law is precisely where the controversy lies. As in the US, the distinction between free speech and harassment or hate speech in the UK is an unsettled one. Universities are as much a battleground here as they are in the US. Government pressure on universities to adopt the IHRA definition of antisemitism under threat of funding cuts has led to its widespread adoption on most university campuses, although the Jerusalem Declaration on Antisemitism (JDA) has the support of a large part of the academic community. Ahmed has been a critic of the IHRA, writing in February 2021 that it ‘obstructs perfectly legitimate defence of Palestinian rights’, though after his appointment to his new role in the OfS, he claimed that the IHRA ‘is an important tool for understanding how antisemitism manifest itself in the 21st century’, but insisted nonetheless that ‘it must not restrict legitimate political speech and protest’. Getting the balance right will be a test, not just for Ahmed and the OfS, but for our universities. What is at stake is the future of free speech in the UK.