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Let me give you a piece of advice. If someone asks you if calling for the genocide of the Jewish people violates the standards of your organization, the answer is “Yes!” Do not equivocate. Do not hesitate. Do not turn to your lawyer and ask for a legal brief balancing the right of free expression against the fighting words involved in a call for the violent elimination of a race of people. Just say, “Yes!”

Representative Elise Stefanik, a Republican from New York, asked the question in turn to each of the presidents of three of America’s leading universities. Each has seen anti-Israel demonstrations on their campus. Each one in turn failed the test.

Let’s be careful here. Stefanik, a Republican, Trump acolyte, election denying, MAGA member of Congress from New York set the trap. She specifically asked each president if calling for genocide, which means the deliberate and systematic destruction of a group of people because of their ethnicity, nationality, religion, or race, was unacceptable on their campus. That is not the call usually used by the self-labeled pro-Palestinian protesters at these schools. The three presidents, coming off as smug and sure that they were separately and collectively the smartest people in the room, failed to catch the difference and launched into clearly well-rehearsed statements trying to avoid offending anyone and instead offending everyone at the same time.

The infamous “Yes or No” question is a frequent tool used by college debaters, lawyers trying to unnerve and discredit witnesses, and politicians looking for a cheap “gotcha” moment sure to capture the attention of the TV audience. Stefanik, herself a graduate of Harvard, played the game like a maestro and caught not only the first black and second women ever to head America’s oldest college, but also caught the female presidents of MIT and the University of Pennsylvania, founded by Benjamin Franklin, in the trap. So much for sisterhood. If you want some context, you can watch most of the hearing here.

Treating different views fairly does not mean treating them all equally. Academic honesty does not require that. Nor does the First Amendment. The University of Chicago issued a policy statement in 2015 regarding freedom of expression. This policy has been subsequently adopted by more than 90 of the nation’s leading universities. The statement says in part:

“Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn . . . . [I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”

Chicago Statement

I imagine this statement is what the three presidents had in mind when they framed their answers and resorted to legalese in their responses to Stefanik. In this, they missed the point. The statement also says:

“The University may restrict expression that violates the law, that falsely defames a specific individual, that
constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy
or confidentiality interests, or that is otherwise directly incompatible with the functioning
of the University.”

Chicago Statement

Our extraordinary First Amendment, guaranteeing freedom of speech, has never been an absolute. You can yell fire in a crowded theater where there is no fire and cause a panic. Schenck v. United States. But if you do, people who are injured can sue you for damages. Similarly, you can be held liable for uttering “’fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire.

The three presidents jumped at the opportunity to wrap themselves in the Constitution and give a legal response where something else was needed. I teach a course titled, “Media Law and Ethics” at UCLA Extension. The course is required for students seeking a certificate in journalism studies. As I explain to the students in the first lecture, while there is considerable overlap between law and ethics, they are not the same thing.

One of my goals is to teach them enough law to understand how to report without creating a liability, such as defamation, for themselves. But at the same time, we consider the ethics often involved in reporting. Or, more succinctly, we ask the question, “Just because it is legal, is it right?”

The three presidents never discussed that question. By giving an answer exclusively focused on the law, they not only gave an imperfect answer, but they also created a false equivalency that obscures the simple issue of right and wrong. I wrote about that a few weeks ago.

In the wake of their testimony, President Magill of the University of Pennsylvania resigned her office. She remains a tenured professor and teacher at the university’s Carey Law School. The chairman of the school’s board of trustees, Scott Bok, also resigned.

On the other hand, the leaders of The Harvard Corporation, the school’s governing board, issued a statement to “reaffirm our support for President Gay’s continued leadership of Harvard University. In similar statement MIT’s governing board declared its “full and unreserved support” for university president Kornbluth.

In watching the extensive news coverage surrounding the campus protests, I was most dismayed by the numerous interviews with the protestors themselves. The amount of ignorance was staggering. Few of the demonstrators could explain the meaning of the words they were chanting or detail the history of the conflict they were supposedly addressing. Educating their students sounds like a good place for the universities to start as they assess the damage their presidents caused.

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