The recent explosive congressional hearing with presidents from among some of the nation’s most elite universities — Harvard, MIT and the University of Pennsylvania — nearly broke the internet. All three academic leaders could not clearly state that advocating genocide against Jews might violate their campus codes of conduct. Politicians of all stripes — along with students, faculty, alumni and prominent donors — were shocked that what seemed like something defined by a bright line of morality would be portrayed as requiring nuance in response.
Elizabeth Magill, Penn’s president, created the most memorable soundbite while under intense questioning by Rep. Elise Stefanik, (R-N.Y.). When asked by Stefanik whether calling for the genocide of Jews constituted bullying or harassment, Magill soberly replied, “It is a context-dependent decision, congresswoman.”
Within 24 hours, she issued an apologetic video for misspeaking under pressure, but that did not prove to be enough to mitigate the damage by not responding affirmatively. The Penn Board of Trustees accepted her resignation by the end of the week, along with that of its chair, Scott Bok.
Although this controversy has been framed as a debate about protecting the First Amendment and free speech values on campus, more focus needs be made on the actual legal standard that would be applied to the context-dependent decision that Magill indicated would be necessary to consider. Penn, a private university, isn’t covered by the First Amendment, which deals with restrictions on free speech by state actors. Nevertheless, it models its campus code of conduct on the same constitutional principles applicable here.
There is a new Supreme Court precedent that underscores why Magill’s assertion could not be supported as a matter of law. When chants of “Kill the Jews” are made during demonstrations on Penn’s campus or elsewhere, they would not be considered as just angry words but rather as “true threats.” Consequently, like other expressive categories such as child pornography or obscenity, they would not be covered by the free speech protection of the First Amendment or by any university code of conduct that references it as a benchmark.
The central legal issue is whether this phrase (or others, such as “Intifada” or “From the river to the sea, Palestine will be free”) constitutes a threat that may be punished by a university. The Supreme Court has indicated that the speaker need not actually intend to carry out the threat. Rather, all that must be proven is that the speaker intended to communicate a threat.
Not surprisingly, over the last 20 years, lower federal appellate courts have not followed a uniform standard about what level of intention was needed to distinguish a genuine threat from protected free speech. That’s why the court’s decision in Counterman v. Colorado this year is so important. The court finally adopted a rule that speech is not protected if the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
This subjective standard now has been set at a level of “recklessness” on behalf of the speaker, which is a lower threshold than establishing an intent to do harm or knowing that the communication would do harm.
Anyone who defaces campus property with a “Kill the Jews” slogan or leads the chanting of this type of mantra in a public demonstration would be consciously assuming the risk that these words would be threatening violence. Under the Counterman decision, these words clearly are meant to threaten violence (and, in some cases, have been accompanied by physical assaults on nearby individuals identified as Jews, too).
This means that Magill’s response (along with similar ones by Harvard’s Claudine Gay and MIT’s Sally Kornbluth) was wrong on both moral and legal grounds. There is no way to contextualize that genocidal expressions against Jews can be anything other than bullying or harassing threats of violence. They are clearly actual threats — not free speech — and must be dealt with accordingly.