Penn abandons the First Amendment (Updated)

Lee Kovarsky and Eugene Volokh offer great defenses of the presidents' answers at Tuesday's hearing, reaching similar conclusions to me in more articulate terms.

Unfortunately, the bad-faith pressure provided too much. Penn President Liz Magill posted a video, apologizing for answering the "does this violate the code of conduct" question in constitutional terms and stating her views that calls for genocide are threatening. She announced plans to reconsider the university code of conduct, with particular reference to whether calls for genocide should be punished as harassment or intimidation. As she put it, "Penn's policies have been guided by the Constitution and the law," but those policies must be "clarified and evaluated" in light of the new rise in antisemitism on campus and across the country.

This is bad for several reasons. As Eugene argues, students must be free to debate important moral, political, legal, and historical questions of when political violence and large-scale loss of civilian life is justified--in Gaza, in Israel, in Germany or Japan during World War II. Those debates are impossible if the university deems such discussions to threaten those who are part of or affiliated with the group suffering in war.

Supposed supporters of Jewish students and Israel may come to regret changes to the policies. Many regard Israel's war on Hamas as a genocide; Jewish supporters of Israel's war effort therefore violate the revised code that regards promoting genocide in the abstract as "threatening" some undefined and unknown Palestinian students. (An emailer described to me an incident at a private university in which a student was reprimanded for saying those defending Hamas are defending baby-killers and thus offending those students--not too far afield. Refusing to have the Constitution and law guide university policies can only lead to more such incidents). Supporters of Israel and Jewish students complain that universities have failed to protect Jewish students from offensive speech in the past two months when they have bent over backwards to protect every other groups from offensive speech. This is a fair criticism. But the answer cannot be to give universities an actual weapon--more-restrictive/less-speech-protective conduct codes-- that universities might use against Jewish speakers.

Finally, of course, the change will not appease bad-faith actors. When Penn applies its new, less-protective policies to sanction a Jewish student who "harassed" a Palestinian student by supporting "genocide" in Gaza, Elise Stefanik and Virginia Foxx will demand that Magill explain why her university has abandoned the freedom of speech.

Update: Claudine Gay (Harvard) issued the following statement:

There are some who have confused a right to free expression with the idea that Harvard will condone calls for violence against Jewish students. Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account.

The first sentence works and would have been helpful at the hearing. I think the devil is in the last clause of the second sentence--does "threaten our Jewish students" mean in the First Amendment sense or in the colloquial sense?