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.
First and foremost the following phrase would result in the immediate expulsion of a student advocating it "I believe blacks are inferior and ought to be enslaved." That statement doesn't even call for genocide. I don't think this statement OUGHT to by itself lead to expulsion. I tend to be more on your side of the street on expression. But it's simply MADDENING that this statement would unequivocally lead to expulsion while a statement of Jew hatred would need to explore the context.
That said the real issue is not calls for genocide. The real issue is one that seemed to slip past the committee (or maybe not I didn't watch the whole thing) which is that these colleges have not just had a student write a tweet or email calling for genocide. They have harassed, intimidated, assaulted and generally menaced Jewish and pro Israel students for years now culminating in the horror shows we've seen since October 7. All are if not criminal acts, then at the least clear violation of student codes of conduct and NOTHING has been done to either the guilty students (and faculty) or even to keep civil order so that Jews on campus don't feel in peril. This in an environment where a sniff in the direction of criticism of a favored class would result in immediate expulsion. The "genocide question" got all the press because it makes an especially horrible television moment but it is a small bit of a straw horse to the real issue.
Thanks, Lee. I took your advice and read Professor Volokh's worthwhile post.
I agree with him to this extent: Not all on-campus statements calling for genocide as the United Nations defines it should be punished. However, I consider the UN's definition to be at odds with the ordinary understanding of genocide. Indeed, I find its definition ridiculously over-broad.
My view continues to be that all statements on campus that explicitly call for genocide under what I take to be the ordinary understanding of "genocide" should be punished. Those who hear the statements, and might be influenced to act by them, will almost always understand "genocide" in its ordinary meaning and probably will never understand it as the UN purports to.
The problem is that this assumes that someone like you will be the one drafting the prohibition on statements explicitly calling for genocide and probably of enforcing the prohibition as well. To make explicit what may be implicit in Eugene's post, that won't be the case. Even if in theory you might come up with the perfect definition, in practice a university is at least as likely to adopt something like the UN's definition. And even with a perfect definition that won't be adopted, you can be pretty sure that university enforcers in their current woke miasma will be likely to conclude that the IDF's actions meet the definition and that defending them is therefore advocacy of genocide. Conversely you can be pretty sure that they will claim that a large group of students defending Hamas's pogrom on Oct. 7 and saying it had the right idea will not be charged, because the enforcers will put an "innocent construction" on these statements.
This already seems to be happening with prohibitions on harassment and the like. Those do lend themselves to misuse, of course, but at least there is a body of First Amendment and civil rights law to use as a point of reference.
My argument was about what colleges should do, not what they will (or might) do. Colleges should punish speech that explicitly calls for genocide as that term is ordinarily understood (with its ordinary meaning spelled out).
Still, we need to be mindful of what colleges will do. And I agree that they might implement a policy that relies on the UN's definition of genocide. Worse, they might ban "hate speech," as the Wharton School administration reportedly has asked the University of Pennsylvania to do.
However, I think it's more likely that a ban on advocating genocide would be much narrower. The goal would be to pacify Congress by banning explicit advocacy of genocide, while pacifying the left by permitting its mobs to chant all manner of noxious and hateful things.
After all, it's more important to college administrators to allow the anti-Israel crowd to chant "Palestine from the river to the sea" than to ban Jews (and others) from occasionally voicing support for Israel and the IDF.
But might not colleges try to do both by implementing a narrow, well-worded policy banning genocide advocacy, but then applying the policy to punish only Jewish and conservative speech?
They might. But given the blowback at Penn and Harvard, I doubt they would. And if they did -- If, for example, they applied the policy to punish advocacy of a strong military response by Israel --their action would be subject to a valid challenge in court as a violation of the stated policy.
Still, there is some risk that colleges adopting a policy banning pro-genocide speech would do so abusively, in one of the two ways you warn of. Does that risk mean we should stop pressuring colleges to punish speech advocating genocide as that term is ordinarily understood?
Maybe. But I think the risk is smaller than you believe it to be, and that the dangers associated with campus advocacy of Jew killing (or killing members of any minority group for the purpose of exterminating it or sharply reducing its numbers) are real enough to warrant calling out colleges for not banning that advocacy.
As for how colleges might apply a policy with a good definition of genocide, I doubt they would apply it as you fear.
First and foremost the following phrase would result in the immediate expulsion of a student advocating it "I believe blacks are inferior and ought to be enslaved." That statement doesn't even call for genocide. I don't think this statement OUGHT to by itself lead to expulsion. I tend to be more on your side of the street on expression. But it's simply MADDENING that this statement would unequivocally lead to expulsion while a statement of Jew hatred would need to explore the context.
That said the real issue is not calls for genocide. The real issue is one that seemed to slip past the committee (or maybe not I didn't watch the whole thing) which is that these colleges have not just had a student write a tweet or email calling for genocide. They have harassed, intimidated, assaulted and generally menaced Jewish and pro Israel students for years now culminating in the horror shows we've seen since October 7. All are if not criminal acts, then at the least clear violation of student codes of conduct and NOTHING has been done to either the guilty students (and faculty) or even to keep civil order so that Jews on campus don't feel in peril. This in an environment where a sniff in the direction of criticism of a favored class would result in immediate expulsion. The "genocide question" got all the press because it makes an especially horrible television moment but it is a small bit of a straw horse to the real issue.
Paul, take a look at Eugene Volokh's contrary argument here:
https://reason.com/volokh/2023/12/09/more-on-advocacy-of-genocide/
Thanks, Lee. I took your advice and read Professor Volokh's worthwhile post.
I agree with him to this extent: Not all on-campus statements calling for genocide as the United Nations defines it should be punished. However, I consider the UN's definition to be at odds with the ordinary understanding of genocide. Indeed, I find its definition ridiculously over-broad.
My view continues to be that all statements on campus that explicitly call for genocide under what I take to be the ordinary understanding of "genocide" should be punished. Those who hear the statements, and might be influenced to act by them, will almost always understand "genocide" in its ordinary meaning and probably will never understand it as the UN purports to.
The problem is that this assumes that someone like you will be the one drafting the prohibition on statements explicitly calling for genocide and probably of enforcing the prohibition as well. To make explicit what may be implicit in Eugene's post, that won't be the case. Even if in theory you might come up with the perfect definition, in practice a university is at least as likely to adopt something like the UN's definition. And even with a perfect definition that won't be adopted, you can be pretty sure that university enforcers in their current woke miasma will be likely to conclude that the IDF's actions meet the definition and that defending them is therefore advocacy of genocide. Conversely you can be pretty sure that they will claim that a large group of students defending Hamas's pogrom on Oct. 7 and saying it had the right idea will not be charged, because the enforcers will put an "innocent construction" on these statements.
This already seems to be happening with prohibitions on harassment and the like. Those do lend themselves to misuse, of course, but at least there is a body of First Amendment and civil rights law to use as a point of reference.
There are some pretty good cautionary tales from Germany about their prohibition on displaying the swastika. See this, for example: https://scheerpost.com/2023/06/15/matt-taibbi-first-roger-waters-now-this-germany-places-american-c-j-hopkins-under-investigation/
Thanks for this comment, Lee.
My argument was about what colleges should do, not what they will (or might) do. Colleges should punish speech that explicitly calls for genocide as that term is ordinarily understood (with its ordinary meaning spelled out).
Still, we need to be mindful of what colleges will do. And I agree that they might implement a policy that relies on the UN's definition of genocide. Worse, they might ban "hate speech," as the Wharton School administration reportedly has asked the University of Pennsylvania to do.
However, I think it's more likely that a ban on advocating genocide would be much narrower. The goal would be to pacify Congress by banning explicit advocacy of genocide, while pacifying the left by permitting its mobs to chant all manner of noxious and hateful things.
After all, it's more important to college administrators to allow the anti-Israel crowd to chant "Palestine from the river to the sea" than to ban Jews (and others) from occasionally voicing support for Israel and the IDF.
But might not colleges try to do both by implementing a narrow, well-worded policy banning genocide advocacy, but then applying the policy to punish only Jewish and conservative speech?
They might. But given the blowback at Penn and Harvard, I doubt they would. And if they did -- If, for example, they applied the policy to punish advocacy of a strong military response by Israel --their action would be subject to a valid challenge in court as a violation of the stated policy.
Still, there is some risk that colleges adopting a policy banning pro-genocide speech would do so abusively, in one of the two ways you warn of. Does that risk mean we should stop pressuring colleges to punish speech advocating genocide as that term is ordinarily understood?
Maybe. But I think the risk is smaller than you believe it to be, and that the dangers associated with campus advocacy of Jew killing (or killing members of any minority group for the purpose of exterminating it or sharply reducing its numbers) are real enough to warrant calling out colleges for not banning that advocacy.
As for how colleges might apply a policy with a good definition of genocide, I doubt they would apply it as you fear.