Since Hamas’ October 7, 2023, attack on Israel, the world has been convulsed by the carnage emanating from the Middle East. That convulsion has migrated to the United States, where it is expressed daily in protests, demands, threats, and moral-grandstanding often reeking of dehumanizing language.
The carnage has claimed the lives of thousands in Gaza and Israel. It has also claimed other kinds of victims in the United States. This includes three college presidents, whose December 5, 2023, testimony before the Education and Workforce Committee of the U.S. House of Representatives brought them instant public infamy because of the way that they positioned themselves in regard to speech.
That incident and its aftermath have further revealed an uncomfortable reality: despite ceaseless public proclamations about freedom of speech in the United States, in fact personal and even group expression is far from free. Public expression is conditional. This is increasingly so as the idea of free speech becomes weaponized by people using their own speech to suppress the speech of others, including when it comes to diversity. .
Let me take a step back. Six years ago I became an inaugural fellow of the University of California Center for Free Speech and Civic Engagement. My fellowship research question: over the last fifty years, why have so many diversity advocates become opposed to our nation’s tradition of freedom of speech?
My research has led me to three basic conclusions that go against the prevailing American free speech narrative:
***Speech in the United States is robust, but the existence of severe personal and societal consequences of speech make it far from free for individual Americans. .
***Most diversity advocates do not explicitly oppose free speech, but they often take positions that fit within the long American tradition of limiting speech by creating onerous consequences.
***There is no diversity-vs.-speech duality. Rather the nation has evolved into a three-cornered battlefield, with both diversity and speech under siege by forces that are both anti-diversity and anti-speech.
First, American speech is not free. Thankfully we have the First Amendment to the U.S. Constitution, which prohibits Congress (later expanded to government in general) from restricting freedom of speech. In fact, however, government does restrain speech (for example, through laws and court decisions concerning such speech acts as libel, slander, defamation, and the invasion of privacy). While the First Amendment limits the extent of government intrusion, it does not guarantee individual freedom of speech, particularly when restraints emanate from private sources. Try using your “free” speech to tell your boss that she’s a dork and see if there are no consequences.
Second, speech has been a concern since the beginning of the contemporary diversity movement in the late 1960’s. For example, diversity advocates have championed the restriction of sexist language, racial and ethnic epithets, and demeaning terms for people with disabilities. The past decade has witnessed a dramatic rise of speech-modifying efforts such as microaggression training, equity language lists, gender pronoun declarations, and claims of feeling “unsafe” around uncomfortable ideas. This language-cleansing process has relied mainly on moral suasion and shaming. Most efforts to establish speech codes have been overturned by the courts.
Third, particularly in the last five years we have seen the rise of ADAS (the anti-diversity, anti-speech movement). ADAS forces often suppress equity and inclusion through governmental restrictions on speech and other forms of expression, regardless of the First Amendment. For example, by restricting teacher speech about so-called “divisive topics” like critical race theory and sexual orientation or cleansing school libraries to protect students from books on such terrifying themes as racial experience and gender identity.
Into this three-cornered battlefield of speech, diversity, and ADAS came a new factor: the October 7 Hamas attack on Israel and the subsequent Israeli invasion of Gaza. In the aftermath, long-extant speech issues took on new dimensions as people weighed in on Israel, Hamas, and Gaza. Sometimes that speech morphed into attacks on Jews, Palestinians, and Muslims in general, including Americans with those identities. Some people choose not to dress in ways that brought attention to themselves as Muslim or Jewish, including on college campuses, where fears of personal safety grew in the face of what many viewed as threats and harassment.
Consequences ensued. Speech has been punished, sometimes by institutions, sometimes by loss of opportunities. Some long-term free speech proclaimers turned into overnight champions of speech restraint. In the process, newly-formed partnerships were created among ideological strange bedfellows. The enemy of my enemy is, well, maybe not my friend, but at least my convenient short-term ally.
This brings us back to the four-hour December 5, 2023, congressional hearing at which the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology testified. In the most widely publicized moment from that exchange, Republican Representative Elise Stefanik, who has remained conveniently silent when Donald Trump publicly consorts with antisemites, reframed the complex speech-related issue of campus safety as an absolutist dualism: “Would calling for the genocide of Jews constitute a violation of the code of conduct at your school, yes or no?”
Rep. Stefanik had thrown the presidents a hanging slider. They should have been able to hit out of the park. Instead they whiffed.
The presidents could have risen to the occasion by taking a firm and unequivocable moral position against calls for genocide . . . against any group. Full stop. Then – but only then – they could have pivoted by explaining their campus policies and procedures within the context of the First Amendment. But, for whatever reason, the presidents ignored the moral dimensions of the question about genocide and instead provided bloodless, technocratic, seemingly overly-rehearsed responses revolving around one idea: that it depended upon context.
Technically the three presidents were accurate. Context counts. In just about everything. There is a contextual difference between people using guns to defend their families and homes from marauders and using those same guns to shoot up a mosque, synagogue, or church.
But to employ the presidents’ own term, that hearing was not the “context” for a completely legalistic, technocratic response. This wasn’t a free speech conference or a faculty senate meeting. It was a moment for the public assertion of moral leadership, not simply institutional analysis. The presidents failed the test of context and have since paid the price for their speech, but differently,
All three received a media thrashing. All three received calls to resign their positions. This included a 303-126 pro-resignation vote of the U.S. House of Representatives. So much for the similarities. Now for the differences.
Under pressure for her speech, Penn president Liz McGill, a White woman, first issued an apologetic clarifying statement (for which she received criticism), including a commitment to rethinking the institution’s speech policies. To no avail. She was soon forced to resign her presidency.
Harvard president Claudine Gay, a Black woman, also issued an apologetic clarifying statement. For a month she survived. However, she was soon hit with additional challenges: accusations that she had plagiarized parts of her dissertation and publications, as well as an assault by blood-smelling critics that her appointment as president was an expression of Harvard’s wokeness. The one-two-three punch took its toll. In early January, after six months in office, Gay resigned. Later that month Harvard announced that it was creating task forces to combat Islamophobia and antisemitism.
MIT president Sally Kornbluth, a White Jewish woman, has fared the best. The MIT board of trustees quickly expressed its support. Instead of merely focusing on the hearing, trustees emphasized her entire body of leadership, including the fact that she had been active in the Jewish community in her previous administrative position at Duke, while at MIT she had taken action regarding antisemitism prior to October 7.
The contrasting trajectories provide an object lesson about speech in America. People can open their mouth and produce words, as they can anywhere on earth. However, that physical capacity alone does not make speech “free.” Speech has consequences, even in the United States, as the three presidents can attest.
Once you pivot away from the technical speech-related expositions of lawyers, jurists, and academics and focus on speech’s real-life consequences, speech no longer retains its misleading veneer of freedom. At the existential level of ordinary Americans, speech becomes a crap shoot. Post-October 7 events have made brutally evident.
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