I suspect I am not the only one who found it difficult to laugh on Saturday night, watching SNL’s send-up of last week’s congressional hearing on antisemitism and college campuses. Coming only hours after Liz Magill actually resigned as Penn’s president amid the ongoing fallout, the real-world consequences of the hearing had become too… well, real.
Here was a leading university president stepping down, amid a storm of politicians’ and donors’ demands, after an exchange with Rep. Elise Stefanik (R-NY) from last week’s hearing went viral. In it, Magill, along with the presidents of Harvard (Claudine Gay) and MIT (Sally Kornbluth), offered a series of technical, “lawyerly” responses to the question of whether calling for genocide of Jews on campus would constitute bullying or harassment under their codes of conduct.
Stefanik’s audacious and frank question demanded a fuller explanation; but the presidents’ curt responses left many aghast at the prospect that such a heinous hypothetical could ever be construed as acceptable.
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The fallout was swift. Now, the incident has a high likelihood of shaping the next wave of a years-long debate about free speech on college campuses.
At best, it may spur universities to review their philosophies and policies, and to recommit to creating campuses where bigotry and hate are rejected and where open and respectful exchange can thrive. At worst, it may embolden some politicians to ratchet up their attacks on higher ed, using the latest crisis to advance ideological ends.
“One down,” Stefanik posted on X in response to the news of Magill’s resignation, “Two to go.”
Meanwhile, the people who have spent years pushing for bans on Critical Race Theory, gender studies, or seeking to dictate how faculty teach about American history, have already announced their intention to introduce bills to fight antisemitism for the upcoming legislative sessions. We ought to be skeptical when the team that has repeatedly shown its desire to advance censorship now seeks to be in the vanguard of setting out new regulations for speech.
But perhaps most troubling about the now viral exchange is that Magill, Gay, and Kornbluth were technically correct. Any free speech advocate will tell you that the analysis of whether insulting, offensive, odious, or even hateful speech can be punishable begins with the question of context.
This is understandably compounded on university campuses by their size and complexity. For the application of university policies it obviously matters who is speaking—students, faculty, administrators, invited speakers—and where—in a classroom, in the quad, in a dorm room, on social media, etc.
Certainly, Magill, Gay, and Kornbluth could have made this all clearer. As private universities, they are not obligated to hew to the First Amendment, but many do, understanding that this offers the best safeguards for free speech and academic freedom. The presidents could have explained this in greater detail, and how this works in practice. They could have explained how different kinds of speech might be punishable in certain circumstances but not in others. And they could have offered a clear condemnation of the hypothetical before them, regardless of the legal or policy analysis involved.
The high-stakes format of the congressional hearing was, of course, not set up for the nuanced exchange this question truly demands. And perhaps that was the point. As Michelle Goldberg explained in the The New York Times, the clip looks really different when viewed on its own than it does in the context of the entire hearing, where it seems clear that Stefanik was referring to her own earlier questions about whether certain specific common pro-Palestinian slogans like “from the river to the sea” directly connote genocide of Jews or not.
The context—again—matters. If Magill, Gay, and Kornbluth thought they were being asked about whether certain specific phrases should result in punishments, their hesitancy to say that they should, from a speech-protective lens, is not only technically consistent with the First Amendment, it also makes a lot more sense.
In the wake of the hearing, in addition to Magill’s resignation, we are now seeing ideas to regulate “hate speech” put forth, such as one resolution from the Board of Advisors at Wharton, that, among other things, proposes to punish students and faculty for celebrating murder or using language “that threatens the physical safety of community members.” The language of the resolution is general and vague, and particularly in campus contexts where students now routinely invoke notions of “harm” and “microaggressions,” it would inevitably open the door to chilling a wide swath of speech on any side of the Israel-Palestine conflict—let alone on a great many other issues, too.
But this is the danger in this moment: that institutions adopt new policies to restrict speech in the rush to remedy their image, policies which might appear to solve one challenge, but will in fact make many other challenges worse. Proposals to ban “hate speech” against racial and ethnic minorities, for example, tend not to contemplate how they can be used by someone like former President Donald Trump, who said “Black Lives Matter” was a “symbol of hate,” or by really any authority to suppress any speech they find disfavorable.
The better answer that Magill, Gay, and Kornbluth could have proffered last week would have been to explain that just because an incident of hateful speech might not constitute grounds for punishment, it does not mean that it needs to be construed as acceptable to a college or university community. And that the question of determining a punishment for speech can, in fact, be separate from a university’s more immediate holistic response: to condemn hate, work to educate their communities, and offer resources to those impacted.
In so doing these leaders might have modeled how fostering a climate of free speech and open exchange need not—and must not—mean allowing hate to flourish unchecked.
The missed opportunity to offer moral clarity and condemnation of hate at last week’s hearing has invited criticism from those who care deeply about higher ed’s future, as well as those who have been working to impose new ideological controls on universities, or generally undermine them. We must be wary of what comes next—as some who want to take advantage of this crisis are clearly already making plans.
Jonathan Friedman is Director of Free Expression and Education at PEN America.
