President Gay Was Right: Context Matters

Since their appearances before the House Committee on Education and the Workforce, the presidents of Harvard, the University of Pennsylvania, and MIT have been subject to a barrage of hostile criticism in the media, including from constitutional scholars known for their advocacy for free speech.

When asked whether they would discipline students (or, I suppose, faculty) if they called for the genocide of Jews, each president responded that the answer depends on the context of the utterances.

I have taught at Harvard Law School since 1961 and began practicing before the Supreme Court in 1985 — for four years as Solicitor General of the United States — and I would have felt professionally obligated to answer as the presidents did. It does depend on the context.

In the 1969 case Brandenburg v. Ohio, the Supreme Court ruled unanimously that “constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Now, many — perhaps most — constitutional democracies do not go this far, and courts in some nations, including Canada, France, Germany, and South Africa, have allowed criminal prosecution for what may compendiously be called hate speech. But our Supreme Court has never deviated from its principle of incitement.

Even in the case that strayed the furthest from this standard — the 2010 decision in Holder v. Humanitarian Law Project, which upheld the statute that makes it a federal crime to knowingly provide “material support or resources to a foreign terrorist organization” — Chief Justice John Roberts ’76 was careful to carve out free speech from the ruling.

In that decision, he wrote that, under the statute, Americans “may say anything they wish on any topic” so long as they do not speak or write “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” The three dissenters would have gone further in protecting the organizations’ speech.

To be clear, governments may withhold benefits from American members of foreign terrorist organizations under certain circumstances, and certainly governments may declare official positions condemning such organizations and their principles. But none of this includes criminal sanctions.

Speech itself is, indeed, well-protected.

The three university presidents head private institutions that are not bound in every respect by federal constitutional constraints. But each institution in various ways has declared itself committed to protecting First Amendment values over the years. So it is not surprising that their presidents would have answered that whether they would discipline or expel students for advocating genocide depends on the context.

If one seeks to follow constitutional principles, answering this question certainly does depend on the context.

In 1991, prompted by an incident in which Harvard students hung Confederate flags outside their dorm windows, University President Derek C. Bok penned an essay defending the rights of the students to display offensive messages.

He directly linked Harvard’s free speech guidelines to First Amendment principles, writing that he had “difficulty understanding why a university such as Harvard should have less free speech than the surrounding society—or than a public university.”

I must admit that I have never seen such flags in recent times. Yet, even today, under the circumstances Bok faced, if I were a university president pressed to answer yes or no whether the student speech in question would subject the students to discipline, I would have to reply that, yes, it depends on the context.

The lead questioner, Representative Elise M. Stefanik ’06, sought to lay a rhetorical trap for the three university presidents. But I doubt Stefanik is as principled as she purports to be.

Were the facts of the event before President Bok 30 years ago to recur and the administration to fail to discipline the display of Confederate flags, would Representative Stefanik have had the same reaction? I doubt it.

Charles Fried is the Beneficial Professor of Law at Harvard Law School.