Colleges should permit extremist advocacy, but advocating genocide goes too far.

In a thoughtful article, David Lat argues that “if you’re serious about free speech, you should agree with [Harvard] President Gay’s refusal to say yes” in response to the question, posed by Rep. Elise Stefanik, of whether calling for the mass murder of Jews would violate Harvard’s Code of Conduct. According to Lat and two First Amendment scholars he cites, “calls for genocide, standing alone—without any targeting of individuals, without any additional action—are protected free speech.”

I hope those of you who have read my commentary over the years believe that I’m serious about free speech. I don’t just advocate it for controversial conservatives. I have defended the free expression rights, as I see them, of leftists as well. Colin Kaepernick’s kneeling during the National Anthem is an example that comes immediately to mind.

However, I disagree with the view that when the speech is an explicit call for genocide, it should be protected.

Lat and the two experts he cites — Nadine Strossen and Eugene Volokh — may be correct that, as a matter of First Amendment law, explicit calls for genocide are protected unless they target individuals or involve additional action. I hope not, but they are experts in this area. I’m not.

However, even if calls for genocide, standing alone, are protected by the First Amendment, they should not go unpunished on college campuses.

The reason isn’t that colleges ban far less harmful speech directed against the left’s favorite minority groups, although colleges do. Lat acknowledges the hypocrisy, but argues that these bans are also wrong. Thus, it requires more than citing college hypocrisy to refute Lat’s position.

The reason why calls for genocide should be banned on campus is because they place the group in question — here, Jews — in clear and extreme danger and do not raise a legitimate issue for debate. (Kind of like crying fire in a crowded theatre, but with a more malign intent.) Exterminating a group of people because of their identity is too abhorrent a demand for students to debate. It’s that very rare piece of advocacy that’s beyond the pale.

The notion that direct advocacy of genocide loses First Amendment protection only if individuals are targeted doesn’t make much sense to me. Such advocacy targets every member of the group in question. In particular, it targets any member of the group that listeners can get their hands on. In this case, that means any Jewish student or faculty member on campus.

I also cannot make much sense of the view that calls for genocide are protected unless they result in harassing conduct. Once they result in conduct, it’s too late. The damage is done.

However, Lat suggests a distinction I can make sense of, and agree with. That’s the distinction between explicit calls for genocide and calls for action or policies that might, or might not, result in genocide. I concur with Lat that statements in the second category should not be punished.

The second category includes statements that Rep. Stefanik equated with calls for genocide. (Note, though, that the college presidents were directly asked, twice, about the status of calls for genocide, not about the statements Stefanik equated with genocide.) Lat cites three of them:

“There is only one solution. Intifada revolution.”

“Globalize the Intifada”

“Free the river to the sea.”

None is an explicit call for genocide. The first two aren’t even suggestive of genocide, in my view. Most uprisings in history, including many religious-based ones, were not accompanied by genocide.

“Free [or from] the river to the sea,” is somewhat different. Put aside the reality that many of the poorly-educated Ivy Leaguers who chant this line this don’t know which river and which sea. For those who do, this is a call to eradicate the Jewish state. That could easily produce genocide.

But it’s possible, at least in theory, to have a Palestinian state “from the river to the sea” without genocide. Moreover, the questions of whether there should be a Palestinian state and, if so, what its boundaries should be are legitimate subjects of debate. Genocide isn’t.

In my view, proper respect for free speech means giving an “innocent construction” — or at least a non-genocidal one — to controversial speech where possible.1 I think it’s possible in this case. I would not construe “free [or from] the river to the sea” as a call for genocide.

Here, we find an answer to Professor Strossen’s problem with banning calls for genocide. She told Lat:

Note the irreducible subjectivity of the concept. Many would argue that advocating Israel’s military response is advocating genocide. I don’t see any clear stopping point.”

The stopping point of a ban should be any statement that does not explicitly advocate killing members of a particular group because of their membership in that group. This standard is reasonably objective; I don’t see irreducible subjectivity in it.

The three statements cited by Lat (per Stefanik) are protected under this test. So, of course, is advocating that Israel invade Gaza for the purpose of destroying its deadly enemy, Hamas.

But calling for genocide is not. Colleges should ban such calls

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1. It’s possible to take the “innocent construction” approach too far. My torts professor, William Cohen, liked to cite an old England defamation case in which a brewer sued his neighbor for saying “my horse can piss a better beer than the brewer sells.”

The case was dismissed under the innocent construction rule because the neighbor’s horse might be exceptional.