Hate speech, the First Amendment and the college conundrum

College students will soon be returning to campus, many with a new and growing awareness of campus codes regulating speech and behavior. Meanwhile, administrators continue to reexamine these codes as they walk a tightrope between the constitutionally protected right to speak one’s mind and their institutions’ responsibility to provide a safe environment focused on their educational missions.

This is not, however, a zero-sum game. Colleges and universities can provide a safe learning environment while maintaining a solid commitment to free speech — and it is essential that they do so.

The spotlight on campus speech codes followed campus protests that teemed with venomous speech following the Oct. 7 attacks on Israel by Hamas and the Israeli military response. Emotions ran high as the participants hurled invectives and sometimes threats at one another, each accusing the other of hateful speech — and all invoking the First Amendment as the ultimate protector of their political speech.

It is an interesting accusation in that the First Amendment is mainly oblivious to hate speech and has a limited footprint on private college campuses. The purpose of the First Amendment is to provide a protected space to speak. That’s all.

The First Amendment does not provide moral guidance. It has no mechanism to distinguish truth from falsity or loathsome from charming. Whether motivated by politics or malice, if the hateful speaker does not incite the audience to lawless action, does not intentionally put the victim in realistic fear of life or limb and does not create an atmosphere of persistent intimidation, they will not be stopped or punished by the government.

What’s more, the Constitution only governs the relationship between the government and the populace. Private colleges and universities are not governmental entities; they can censor speech without constitutional backlash. 

Private colleges rely upon their educational mission statements and codes of conduct to design regulations that affect speech on campus and in the classroom. Few private colleges ignore the constitutional rules protecting freedom of speech, but they limit speech much more than is possible under the First Amendment. Public colleges are governmental entities, so they are more constrained by constitutional principles in their ability to monitor and restrict speech on campus. As a result, private colleges can ban whatever they define as hate speech — even speech intended as part of a political protest — if it creates an atmosphere that disrupts learning.

Somehow, the three presidents from elite American universities who were called to task at a congressional hearing in early December utterly failed to adequately explain the limits of First Amendment freedoms on campus. Two of them have since lost their jobs in part because of that failure.

When asked by Rep. Elise Stefanik (R-N.Y.) whether calling for the genocide of Jews violates the universities’ codes of conduct, the college presidents offered only evasion and doublespeak. 

The correct answer to Rep. Stefanik’s question is yes. If calling for the genocide of Jews was intended and received as a threat to the life or liberty of Jews, it is a violation of both the Constitution and the schools’ codes of conduct. And yes, if calling for the genocide of Jews is part of a steady barrage of venom intended to intimidate and harass Jewish students in their place of learning, it is a violation of both the Constitution and the schools’ codes of conduct. And yes, if calling for the genocide of Jews is disruptive of the educational environment, it is a violation of the codes of conduct, even if it would otherwise be constitutionally protected political speech.

The presidents’ shockingly inarticulate testimonies have rippled across campuses all over the U.S. and have led to the ban or suspension of pro-Palestinian groups from campuses, as well as calls for increased surveillance of speech on campuses. These actions may appear to keep campuses quiet and peaceful, but they will also reduce debate and intellectual engagement. 

While the First Amendment does not offer robust protection on college campuses, the theory on which it is built should not be ignored. The First Amendment serves its highest purpose as the guardian of the marketplace of ideas. The hope is that better, more robust ideas will survive the competition, and dangerous, weaker ideas will die. It is fair to argue that the theory does not always match reality, but it works better than censorship.

Censorship is particularly ill-advised on a college campus, where students learn critical-thinking skills that will help them distinguish between well-supported and poorly supported arguments. Overly restrictive enforcement of campus codes will impede the ability of students to develop those essential skills. Worse still, silencing public expression of angry voices will do little more than drive rage and hatred underground, which is far more dangerous to students and to the community at large.

Colleges and universities should maintain their commitment to their educational missions. Of course, speech that threatens, intimidates, harasses and disrupts the educational environment should be punished. But political debate should remain protected — even when it includes hyperbolic and offensive speech. Debate and disagreement is a teaching tool, not a scourge.

Lynn Greenky is a Professor Emeritus at Syracuse University, where she taught a course about the First Amendment for 10 years. She is the author of “When Freedom Speaks.” Follow her on Instagram @lynngreenky.