FIRE’s Will Creeley on Campus Speech Controversies Amid Israel-Hamas War

Will Creeley speaks on a panel at the National First Amendment Summit in Philadelphia, Pennsylvania, Sept. 13, 2023. Courtesy of the National Constitution Center.

By Susanna Granieri

Since the beginning of the Israel-Hamas war on Oct. 7, colleges and universities across the country have been embroiled in conflict, with demonstrations from pro-Palestinian and pro-Israeli groups bringing tensions on campus to new heights. Some school leaders have been accused of failing to adequately protect their students from bigotry, highlighting conflicts between free speech principles and university codes of conduct.

Following a December congressional hearing, the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology faced national backlash over their testimonies, in which they did not unequivocally state whether calls for the genocide of Jews would violate their universities’ codes of conduct. UPenn President Liz Magill resigned days after her testimony. Harvard President Claudine Gay also ultimately resigned from her post, after the controversy brought increased scrutiny to her academic record and accusations of plagiarism.

In a January interview with First Amendment Watch, First Amendment expert Will Creeley, legal director at the Foundation for Individual Rights and Expression (FIRE), discussed the issues of law and ethics behind the controversy, outlined where the lines around protected speech on campus should be drawn, and argued that pushing unpopular or offensive speech underground could cause more harm than good.

(Editor’s Note: FIRE contributed some funding for a First Amendment Watch project in 2023. This interview has been edited and condensed for length and clarity.)

FAW: Questions about the limits of free speech on college campuses have taken center stage in recent weeks. What was your reaction to their testimonies and why do you think the public reacted so strongly to it?

WC: I think that by the time the presidents were on Capitol Hill, in some ways, their ability to best answer that question regarding “calls for genocide” had already been compromised, given their checkered record on free expression and their failure to demonstrate an even-handed, viewpoint-neutral approach to protecting expressive rights. In other words, they were imperfect messengers. So while their answers were legally correct, they had lost credibility as leaders willing to uphold those definitions in practice. While legally correct, there’s an element of empathy and understanding; the truth is that students on campuses are freaked out, pro-Palestinian students, pro-Israeli students, and everyone in between are exhausted, horrified and frightened. So in answering questions fairly robotically, the fact that the presidents were insisting on the necessary nuance did not come through as a principled articulation, cognizant of the fraught moment on campus, but rather as a legalistic out. That was the real problem.

I think they would have been far better off recognizing the difficulties and challenges that students are facing, explaining that calls for genocide can indeed violate student codes of conduct but that to best protect expressive rights, as these campuses are committed to, the First Amendment and basic principles of free speech require an examination of the context of the speech. And that’s the most fair and exacting way to ensure that we protect the broadest range of free expression on campus, while also ensuring that true threats, discriminatory harassment, incitement to violence, and other unprotected speech is punished. In other words, they needed to read the room. I will say that anytime an elected official is asking you a question, and there appears to be only one acceptable answer, we should all be nervous. It’s not a good place to be. Congressional hearings are where nuance goes to die, right? If we insist that there are some magic words that are automatically denied constitutional protection, we’ve already forgotten the power and promise of the First Amendment. There are no words that are so awful, they can’t be reexamined, reclaimed, repurposed, debated, discussed, or simply ignored. But the insistence by Rep. Elise Stefanik that the presidents commit ahead of time to a vague and viewpoint discriminatory ban on “calls for genocide” is sharply at odds with both the First Amendment and basic principles of free speech.

House Education and The Workforce Committee hearing on Capitol Hill, in Washington

Harvard University President Claudine Gay, University of Pennsylvania President Liz Magill, professor of history and Jewish studies at American University Pamela Nadell and Massachusetts Institute of Technology President Sally Kornbluth attend a House Education and The Workforce Committee hearing titled “Holding Campus Leaders Accountable and Confronting Antisemitism” on Capitol Hill in Washington. Dec. 5, 2023. (Reuters/Ken Cedeno)

FAW: First Amendment law is fashioned around the idea that harassment is unprotected if it’s one person to one person. I’m curious about your thoughts on whether it could ever rise to the level that intervention is required, that there are groups of students that feel unsafe so it ends up impeding their educational opportunities, especially at private universities?

WC: It’s a really interesting question, and one that we’ve been thinking about a lot here. Whether by amalgamating a variety of instances of protected expression, from across campus, that you could somehow cobble together a hostile environment for a given set of students here. The difficulty is in the conceptualizing of hostile environments as discrete instances of protected speech, put together to form, in the aggregate, a hostile environment. What then is the institutional response? Does the institution then have an obligation to silence every individual instance of protected speech in order to prevent it from stacking in that way, to constitute discriminatory harassment? That’s clearly not an acceptable answer. I think it is perhaps possible that some students on campus or student groups on campus are consistently engaging in this speech in such a way that it does, if coupled with more, begin to constitute discriminatory harassment.

It’s one thing to chant “Intifada!” or “From the river to the sea!” at a political rally. If you are following students around and chanting such speech, it takes on a different tenor and you could begin to see that as constituting discriminatory harassment. Or it’s possible that a student is, again, individually now tailing other students and subjecting them to this repetitive conduct that over time constitutes a hostile environment. But I think that in the broad situation, the repetition of protected speech at a rally, I think it has to be a high bar to protect political expression here. I think you have to have an exacting standard for what constitutes discriminatory harassment. It has to be targeted, so severe, pervasive and objectively offensive that it denies the victim students access to an educational opportunity benefit, any standard that’s lower than that, either in policy or practice, becomes a worrying step towards prohibiting protected speech. The Office for Civil Rights has made clear, the federal agency that is tasked with enforcing Title VI and Title IX and other federal anti-discrimination laws, they made clear that mere offensiveness alone is not enough to constitute a hostile environment, that it has to be something more than the offensiveness of a given phrase or a given speaker’s words, and it’s that kind of speech plus that I think best describes hostile environment harassment.

Rally in support of Palestinians amid the conflict between Israel and the Palestinian Islamist group Hamas in New York

In this Nov. 15, 2023, file photo, protesters hold a rally in support of Palestinians, amid the ongoing conflict between Israel and the Palestinian Islamist group Hamas, outside the Columbia University, in New York, Nov. 15, 2023. (Reuters/Eduardo Munoz)

FAW: House Resolution 927, which condemns rising antisemitism on college campuses as well as the university presidents’ “failure to clearly state that calls for the genocide of Jews constitute harassment and violate their institutions’ codes of conduct,” was passed on Dec. 13. In a letter, FIRE states there is “no categorical First Amendment exception for calls for genocide, and the First Amendment protects speech that administrators or others may consider offensive, even deeply so.” Could you tell me your thoughts on the passage of this resolution?

WC: It’s the same nuance-free interpretation. The fact is that some “calls for genocide” may be, and properly are, protected by the First Amendment. Also, just thinking about the instant situation on campus now, we are not seeing students walking around campus saying “Kill all the Jews!” or “The Jews are on the third floor! Let’s go get them!” or “I’m ready to kill Jews! Let’s do it!” In some instances, those kinds of calls would be true threats. And when somebody says “Let’s kill all the Jews now! Who’s with me?” that begins to sound an awful lot like a true threat or potentially incitement to violence and so forth. What we’re hearing instead are calls for “Intifada!” or “From the river to the sea, Palestine shall be free!” And again, those are contested meanings, right? To some ears, those will sound like a call for the elimination of Jews. And I wonder if all the folks who are saying those phrases are fully cognizant of that. They may not be. On the other hand, if folks are saying those phrases as some kind of political flourish or even simply advocating for violence at some uncertain time in the future, that alone is protected and it’s properly protected.

The idea that we are going to end antisemitism, or any other kind of bigoted speech, by censoring expressions of that speech — It just doesn’t work that way. I don’t think you can censor your way out of the problem with bigotry. I think instead, you’d have to discuss it and debate it and take it head on. And I also think there’s value, cold comfort though it may be, in knowing what folks on campus think. Let’s say we were to impose a ban on “calls for genocide” and enforce it broadly. Driving that kind of speech underground doesn’t mean it’s gone away. It simply allows it to fester out of sight and potentially become dangerous. So I think it’s misguided to suggest that calls for genocide are always prohibited. It’s misguided to suggest that calls for genocide are what is often being expressed on campus. It’s misguided to suggest that banning calls for genocide will actually address antisemitism on campus. I think all three of those premises are wrong. And that’s why we urged House members to vote against that resolution.

FAW: FIRE’s letter notes that more universities, especially private ones, are looking to revise their campus speech codes as a result of the backlash following the Dec. 5 congressional hearing. Are you troubled by that?

WC: Yeah, I’m very, very, very troubled by it. I think if some universities are told, “Hey, we’d like you to start cracking down on protected speech,” they may react. That is extremely dangerous. If that’s the net impact of the presidents congressional testimony, if private universities nationwide decide that free speech simply isn’t worth it, or a real commitment to free speech is somehow a political liability for an institution, then those hearings will have done more damage to the cause for free speech on campus than any one government act or a university president has done in decades. It would be a disaster if the lesson that college university presidents learn from this is free speech is something to be feared, that might get you fired.

Rather, the answer should be to recommit to free speech, to do so even handedly and fairly, and to ensure that the line between protected expression and unprotected conduct is fairly and evenly enforced. No matter what these students are expressing. That’ll be the hardest work but it’ll also be the more lasting work and it will ensure that students can attend class and live in safety, but also can explore the wide world of ideas and get a true liberal arts education. That’s the real goal. Simply banning calls for genocide won’t get you anywhere except teaching students that there are some ideas that are so dangerous that you shouldn’t go near them. And again, what will happen is you’ll sweep up an awful lot of protected expression.

Pro-Israel students take part in a protest in support of Israel amid the ongoing conflict in Gaza, at Columbia University in New York City, Oct. 12, 2023. (Reuters/Jeenah Moon)

FAW: Students have been overwhelmed with different types of speech on their campuses, and some may not understand that hate speech is often protected by the First Amendment. If you were to speak to a student who feels that they are enduring hateful speech directed towards them, what would you say? Where would you draw the line?

WC: If I speak to a pro-Israeli student, or a Jewish student, who is again understandably feeling frightened and shocked by both the Oct. 7 attacks and then the climate on American universities, I would say, banning calls for genocide will result in a foot race between you and pro-Palestinian students, as both of you are effectively accusing the other of supporting and calling for genocide, and then woe will be to the poor administrator who’s tasked with determining whether criticizing Israel’s military response against Hamas constitutes genocide, as some are arguing it does, or whether calls for “From the river to the sea!” constitute calls for genocide. The administrator is going to be forced into making an unnecessarily political choice as to what does and doesn’t meet that vague, amorphous and viewpoint-dependent standard. That standard could be used against pro-choice speakers. It could be used against Christian evangelical speakers, critics of transgender rights, proponents of certain brands of feminism, and so on and so forth. There’s lots of folks who will be very happy to enforce a ban on “calls for genocide” against their political opponents, and will have no trouble figuring out arguments that would render their speech of their opponents a “call for genocide,” any kind of “dehumanizing” language, again from both the left and the right, will be fair game for a “call for genocide” exception. And the people who will be enforcing those standards, are campus bureaucrats who have, to put it lightly, a very checkered record on freedom of expression. It will be a disaster. So in other words, I would say to the students, this won’t make you any safer. There’s value in knowing what people actually think, and the advocates of censorship throughout history, and certainly throughout social movements in the United States, are always happy to claim the moral high ground, but in reality, they cannot overcome the fact that they are simply declaring some speech out of bounds. It just doesn’t work. So it’s flawed morally, it’s flawed legally, and I think it’s flawed practically.

FAW: How would you have responded to Rep. Stefanik’s line of questioning?

WC: I have a feeling the presidents, in failing to provide empathetic, responsive answers, and instead relying on pure legal formulations, I think that they were perhaps playing to a different audience rather than speaking to the members of Congress in the room. They may have been thinking about constituencies back on campus, and that’s indicative of the way that free speech standards have been enforced, or ignored on campus, depending on the identities of the speaker. It’s hard for me to imagine that had other protected classes been in the roles now occupied by Jewish students, that those answers would have been delivered the same way. That’s, I think, just a fair guess based on the types of enforcement we’ve seen on campus throughout the years, where there are different standards in play for different speech, whether it’s coming from the right or the left, or the identities of the speakers involved.

All that is to illustrate that viewpoint discrimination is absolutely anathema to any kind of understanding, fairness and equality. Before the law, everybody should be treated the same. There shouldn’t be double standards, there should be free speech standards, and that’s the opportunity these colleges have now, had they been able to testify on Capitol Hill and say, “Look at our records, we uphold free speech for all. We may find this speech as abhorrent and offensive as you do, Representative, but our standard is to provide whatever resources we can to the affected communities and combat the speech we dislike with more speech. That’s what the First Amendment requires, and that’s what our commitment to free speech as private universities requires. And you can see in our record that’s what we do.” Unfortunately they did not come to the hearing with that kind of record established, so in many ways, by the time they got behind the microphones, it was already too late.