UPenn President Resigns Over False Free Speech Issue

"Destroy Israel," Like "Nuke Norway," Is Constitutionally Protected
WASHINGTON - Dec. 9, 2023 - PRLog -- Following calls for the removal of UPenn's president because she refused to admit that calling for "violent armed resistance against the State of Israel" always violates the school's codes of conduct, she was finally forced to resign.

But what she and the presidents of Harvard and MIT said at the congressional hearing was completely correct as a matter of law, says public interest law professor John Banzhaf, a free speech scholar who has defended free speech on his own campus as well as on others.  And he's not alone.

Responding directly to this testimony, law professor Eugene Volokh wrote very bluntly: "There's no 'advocacy of genocide' exception to the First Amendment, or to the contractual promises of student free speech that many private universities rightly implement."

Also, as law professor Howard Wasserman has explained, "Much antisemitic speech (as with most hate speech) is constitutionally protected. Horrible and unnerving, but constitutionally protected. It takes a lot for speech to cross the line into harassment, incitement, fighting words, or true threats.  Much of what we have seen on campuses the past 24 days does not cross (or even come near) that line. . . .  And schools cannot punish unauthorized antisemitic tearing or projecting more harshly than other unauthorized tearing or projecting."

"I could shout in the middle of my university's quad, proclaim at a faculty meeting, or write in a newspaper or blog that we should: 'NUKE NORWAY" or "ANNIHILATE AUSTRIA," or 'DEMOLISH DENMARK," etc., and my speech clearly would be protected by the First Amendment - or, in my situation, by my university's legally binding guarantees to follow it, because none of these polemics creates a clear and present danger that anything might in fact and in the real world happen, notes Banzhaf.

Also, even taking such statements as creating a clear and present danger, the risk is to the current residents of those countries, and not to any students on campus who might come from Norway or Austria or Denmark and/or have families living there.

However, if a student were to post a statement praising Intifada on the door of a Jewish student, or if a crowd followed a Jewish student yelling the same word, it would almost certainly cross the line and become a threat and/or harassment rather than a mere political argument.  Thus it would then violate university policy.

In other words, the three presidents were all correct as a matter of law.  Whether or not a certain highly objectionable and antisemitic phrase violate a university principle or policy depends on the context and specific facts; is it mere generalized political rhetoric or a more specific (even implied threat).

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf

GW Law
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