Opinion: College campuses can’t ban hateful speech but there are other ways to combat it

By Erwin Chemerinsky and Howard Gillman

Above all, the First Amendment means that all ideas — even deeply offensive ones — can be expressed on a college campus. There are certain views that we all hope never would be voiced, but the central premise of the First Amendment is that it is worse to give the government the power to outlaw particular ideas than to allow them to be voiced. As Chief Justice John Roberts declared, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

This issue came to national attention last week at a congressional hearing when three presidents of prestigious universities refused to say that they would ban any advocacy for the genocide of Jews on their campus. The problem was that they were asked a deeply emotional question, but they attempted to respond with a nuanced answer that was technically correct on the law but too dispassionate about the traumatic impact of such speech at universities. The media latched on to a soundbite and presented the presidents as insensitive to hate and antisemitism, even though they had issued many condemnations in other answers.

To be clear, advocacy of genocide against Jews is abhorrent and inconsistent with the values of every institution of higher education we are familiar with in the United States. University leaders must speak with great clarity and force on this basic point. Leaders must not evade the serious challenges associated with the fact that too many faculty and students speak in ways that are truly horrific and frightening to Jewish students. This must be a matter of urgent attention and sustained focus throughout American higher education.

But the details of what exactly this means in terms of what can and can’t be done by a university are more complicated.

To begin with, private universities do not have to comply with the First Amendment, which applies only to government institutions. However, most private universities aspire to comply with the principles of freedom of speech and academic freedom, and the university presidents who testified said that their campus policies were designed to mirror the constitutional obligations imposed on public universities.

This leads to the second incontrovertible point: The First Amendment imposes an absolute bar on what public universities and colleges can do about the isolated and fleeting expression of even abhorrent views by students or faculty.

It is tempting to say that any advocacy of genocide should be banned and outside the scope of the First Amendment. That, though, is not and never has been the law. Allowing the government such a power of censorship would not be easily cabined. Some argue that what Israel is doing in Gaza is genocide. Could a university then ban speech supporting Israel? Those who oppose abortion have often described it as a form of genocide. Could a college so inclined ban all pro-choice speech?

The courts have been consistent that hateful speech is constitutionally protected. In the early 1990s, over 360 colleges and universities adopted hate speech codes. Every one, without exception, that has come to court was declared unconstitutional as a violation of the First Amendment.

But there certainly are circumstances where universities can punish advocacy of genocide or other hateful speech. Speech can be punished if it is incitement of illegal activity, which the Supreme Court has said requires that there be a likelihood of illegal activity and that the speech be directed at causing imminent illegal activity. Speech is not protected by the First Amendment if it is a “true threat,” meaning that the speaker acted with a conscious disregard that there was a substantial likelihood that the speech would be regarded as a threat of violence — which is a standard that in many circumstances would allow punishment of advocacy of genocide. And a university must act if speech rises to the level of harassment, which usually requires that the speech be so severe and pervasive as to materially interfere with educational opportunities based on race, sex, religion or national origin.

What also was not expressed is that there is much that university officials can and should do besides punishing speech when there is hateful speech. Indeed, federal law requires that colleges not be “deliberately indifferent” when there is harassment. University officials have many tools, including using their voices to condemn hateful speech, providing educational programs and training about antisemitism and other types of bigotry, and providing support for students. If people are advocating genocide, that must be responded to as an abhorrent violation of campus values, even when the First Amendment does not permit the censorship or punishment of the individual speaker.

There always is a temptation to want to censor the speech we don’t like. No one can fault the members of Congress for wanting to stop any advocacy of genocide. And they are right to expect that universities will not sit idly by while groups of people are calling for genocide against others. No one disagrees with that, including the presidents who testified before Congress. But what exactly can and cannot be done is regulated by well-established principles of constitutional law and federal law. That is what the college presidents were trying to say but never really got to express.

Erwin Chemerinsky is dean at the UC Berkeley School of Law. Howard Gillman is the chancellor of UC Irvine.