My longtime and dear friend Robert George sounded the note of liberal confidence when he declared that the regime in the universities must encompass “the right to examine and defend or criticize any idea, including ideas we judge to be extreme and even evil.” And so indeed it must. But we must be clear at the same time that nothing in that search for the truth entails that we recede in any way from the surety that we have with us, now as ever, the standards for judging evil ends to be truly evil.
There is no need to slip into a kind of soft relativism in which we are willing to pretend to ourselves that the case for Nazism and Auschwitz has a claim to be regarded as legitimate as any other ends that are on offer in our politics and civic life. But that distinction was far clearer in the classic teaching on the moral framework of free speech that came out of the classic Chaplinsky case in 1942. It was a teaching that was quite in line with what we have understood about linguistics: about the way that words are used in our ordinary language. But it offered the “commonsense” understanding of the moral boundaries that we ever see at work about “speech,” as in every other dimension of our personal freedom. The drift away from that teaching has brought us to the moral emptiness of those clichés uttered by the presidents of three universities when they were called in by Congress to give an account of themselves. If we connect again seriously with that commonsense teaching, we see that there is something awry in the conventional formulas we have been offered now in the hope of securing at least some enclaves of free speech on the campus.
The upshot now is that the clichés offered in defense of free speech on the campus, detached from those old moral grounds, have left the universities morally mute, utterly bereft of judgment, in confronting the scariest assault on our civic life that I have seen in my own lifetime. When I was born in July of 1940, France had fallen and a murderous Nazi regime was moving with a growing dynamism. When the war had ended, as Victor Davis Hanson said, every notable Nazi was fleeing for his life or under arrest. The anti-Semitism after the war would be acted out in those forms of discreetly barring Jews from hotels and private clubs, from prestigious law firms and boards. But there were no more sights of public demonstrations calling for the killing of Jews. Those kinds of displays were regarded now widely in our culture as disreputable. The Supreme Court sustained in 1952, in Beauharnais v. Illinois, a statute that barred racial defamation, or the inciting of hatred on the basis of race or religion; and the statute was framed with language far more careful and precise than the language we’ve seen in statutes so casually struck down in our own day. The statute in Illinois was directed at those who presented to the public any lithograph, plays, publication, or movie that:
portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots.
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That statute was adopted after the famous race riots in Chicago in 1919. But in the aftermath of the Holocaust, those statutes were taken ever more seriously again and strengthened all over Europe. As the late Philip Kurland observed, the decision on that statute in Beuharnais has never been overruled. But now we have seen a dramatic moral inversion, with the irruptions on the campuses and the cities. It is no longer disreputable now to come out in public places to justify and celebrate the killing of Jews as a tenable way of making a territory in the Middle East Judenfrei.
Let me put it then in this way: there is no campus in this country that would permit the burning of crosses, even when black people are not present. The expression of the N-word is now wholly forbidden, even for professors who would quote from Mark Twain in deriding racists. In my own Amherst College, some gestures of racial hostility were enough to have classes suspended, the campus drawn into days of self-examination, along with the conviction that those who had done such things had no place in this community. If that is the case, it is hard to see how it can be plausible for students to go unchastened or unpunished for coming out en masse, in a planned and choreographed movement, to call for the mass killing of Jews without restraint if that is necessary to remove Jews from Palestine.
It was the deep virtue of Justice Frank Murphy’s opinion in the classic case of Chaplinsky v. New Hampshire, to show us that we can indeed have a serious framework of moral judgment to sustain a robust defense of speech. Among other things, that understanding had the cardinal attribute of reminding us that “assault,” in the law, has never strictly required a laying on of hands and material harm. One can hold an unloaded gun near someone’s head and click the trigger; one can make sadistic and threatening phone calls in the night; and yes, one can burn crosses outside the home of a black family. Human beings, as “moral agents,” are naturally given to arguments and complaints about the things that are right or wrong, just or unjust; and they will bring forth, in the language, the words and gestures, that bear the moral functions of commending or condemning, praising or blaming. And at the very edge of things will be those words with the function of insulting and attacking. Hence those lines from Justice Murphy’s opinion in Chaplinsky:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
There were two critical components here. First, the words and gestures established as assaults are known in everyday usage in ordinary language. You don’t need an academic degree for this; truck drivers and construction workers can be as savvy as lawyers in noticing when they are being “dissed” or treated with disrespect. The clearest test comes with any jury: we tell the jury to hold back and not convict if there is any hint of uncertainty about the offensiveness of the words. Most people have no trouble picking out the terms that would be commonly understood as terms of attack—just as most people would have no trouble in telling the difference between a burning shoe box and a burning cross.
But then the second, decisive point: that the sharp, practical distinction would be drawn between the words that assault and the words that make a substantive argument. The most telling examples that make Murphy’s point have been given to us in the cases of David Rosenfeld and Seth Waxman.
Rosenfeld, speaking at a meeting of the school board, had one adjective threading through his harangue, “motherf—ing.” And he was asked to stop. As Justice Murphy would explain, this language had nothing to do with the “exposition of ideas.” To bar Rosenfeld from destroying the climate of discussion in that way did not deprive him of making the most searing substantive attack on the performance of the school board.
Seth Waxman was a distinguished Washington lawyer and former Solicitor General. I was in the courtroom hearing him defend the Fox network against the FCC, defending the freedom of performers on television to use such expressions as “sh–” and “f—ing.” And yet in the course of that finely spun argument, he never used those very words he was seeking to defend as words legitimate for public broadcasting. He offered then one of the most elegant confirmations of Justice Murphy’s key point in the Chaplinsky case: forgoing those words did nothing to impair his substantive argument—and he won his case.
This remains the clearest distinction accessible to the common sense of ordinary people: the distinction between words and gestures of assault, set against the words that make a substantive argument. That is why, as Professor George says, we can fully protect the freedom of Professor Peter Singer to make his arguments in speeches and writings—the arguments, as Professor George recalls, that “[defend] the moral permissibility not only of elective abortion . . . but even the intentional killing of infants for some period of time after they are born.” That is also why we can discuss in class Hitler’s Mein Kampf, even as we restrain a bunch of self-styled Nazis from parading in communities containing survivors of the Holocaust and their families. And by the same reasoning, it doesn’t count as assault if students affect to feel unsafe or threatened by substantive arguments in the classroom over abortion or transgenderism, or by a professor using the N-word as he tries to explain terms settled in the language as terms of denigration. And yet still, as Professor George notes, “the academic project entails norms that restrict some instances of speech . . . threats and harassment are prohibited, as are slander and libel . . . [and] incitement to imminent lawlessness.”
But what about a demonstration on campus, accusing Israel of conducting genocide in Gaza? Isn’t that about a substantive argument? Perhaps. And yet it also brings us back to an old, uncomfortable truth that people seem afraid to speak these days. Justice Hugo Black was as much of an “absolutist” on free speech as one could find, and yet he insisted that there may not be demonstrations in front of the courthouse: there should be no suspicion that any judgment reached in a court will be affected by the massing of people on the street. A moral conviction may sweep people into the street, but a massing of people on the campus is not a “discussion,” nor is it the making of a substantive argument. It took Thomas Hobbes to express the unlovely truth here: that the point of massing people in the street is to convey a sense of how powerful and rightful their position must be, which is to say it is simply another form of the “rule of the strong” or “might makes right.”
But if we are dealing with a university that takes itself seriously as a university and not an academic theme park, the administration and faculty can insist now that we can be far more demanding: massing people on the campus is not a “discussion,” but a real university lives through the challenge and testing of arguments. We might, out of prudence or tolerance, accommodate this occasional flare-up of a demonstration, but the people who choreograph these protests should be alert that, in staging the demonstration, they are now called upon to defend their position and open themselves to a searching critique. The students defending Hamas should come before us and tell us why these attacks of Hamas are things they call “morally justified.” What “wrong,” say, has been done to the Palestinian people that finds it an apt and proportionate response to kill parents in front of their children and behead babies? And there could be professors on both sides ready to step in to engage in the debate. Have we forgotten that this is exactly what took place at Harvard and other universities in “teach-ins” over the war in Vietnam? In fact, something like this has just been played out at Dartmouth, and so we know that it can be done. What is missing simply is an administration—and perhaps a faculty—with the imagination and nerve to insist that it should be done.
If the demonstrators take themselves seriously, they should realize that it will take some rather refined reasoning to make their argument. For if we take them at their word, they would seek to show that what the Israelis are doing, penetrating into the tunnels of Gaza to find and have it out with the Hamas fighters, is essentially equivalent to shipping Jews to the ovens of Auschwitz and Dachau. It was a deliberate plan, after all, to carry out a savage assault on civilians and take hostages, knowing that the Israelis would have to respond to repel Hamas and get their own people back. And when they did, they would encounter an enemy without uniforms, embedded with ordinary people, with their weapons hidden in hospitals and schools. That the Israelis were bound to kill and wound civilians in Gaza was taken from the beginning as the political asset for Hamas with the media. To make the argument that this is indeed “genocide,” comparable to the Holocaust, will require high skill; but the demonstrators should be challenged to step up and make that argument, and take the risk of embarrassment in their failure to make it.
We need to be clear that when the demonstrators argue against the Israeli “occupation,” their complaint is not that Palestinians are governed without their consent in a regime of free elections, for they have been governed for years now without free elections in Gaza and the West Bank. Their complaint is that the land is “occupied” by Jews living there. And the demonstrators have given us to understand now that the brutal attack by Hamas is an altogether “justified” way of effecting that removal, which is to say, a willingness to kill Jews without restraint because they are living there. If that doesn’t count as “genocide,” it would be hard to say what would. And this is the hard truth that must put the odium—and the burden of justification—on any of these demonstrations whenever they flare. In fact, the planting of that very point may foreclose any need for controls and punishments on the part of the university: to have it known that a demonstration in favor of killing all Jews to remove them from Palestine will be as objectionable—and as disreputable—in this community as the burning of crosses.
But all of this shows as well—if it needed showing—that nothing in this framework of moral judgment falls apart because people frenzied with hyperbole will make up their own definitions of “genocide.” The quick invocation of “genocide,” whenever arms are taken up and people are killed, cannot be an “argument stopper.” It becomes the ground, rather, of a burden of proof, to explain and justify a grave charge of that kind. We are often cautioned, in prudence, to hold back from making these moral judgments on the uses and abuses of speech, because people will twist words to mean anything. But as the late M. Stanton Evans warned, “the problem with pragmatism is that it doesn’t work.” What serious scheme of practical judgment or jurisprudence can plausibly begin with the axiom that we must rule out claims to truth, or just stop taking them seriously? What serious vocation, what serious life, could be lived in that way?
Image by Vasyl and licensed via Adobe Stock.
