American Free Speech Laws Are Falling Out of Step With Public Opinion


On the 5th of December, 2023, the presidents of Penn, Harvard, and MIT were asked before Congress if calling for the genocide of Jews was prohibited on their campuses. All three presidents gave the same answer, “It depends on the context.” Provided that calls for genocide were not targetted at an individual and did not turn into conduct, they did not go against campus policy. Outrage erupted. The president of Penn resigned almost immediately. Harvard’s Claudine Gay was toppled earlier this month after activists dug up old instances of plagiarism, while MIT’s Sally Kornbluth is still standing

At first glance, the issue seems like a simple failure to protect students from discrimination. Upon closer examination, the current scandal is the natural result of a growing tension between evolving moral values and free speech. Despite a growing commitment to inclusion, offensive and discriminatory speech is not only permitted in the US but also protected in many cases. A good example of this is the 1969 Brandenburg vs Ohio case. A Ku Klux Klan leader was arrested in Ohio for saying that force might have to be used against the government if it kept suppressing the white race. The Supreme Court found the advocacy of political violence is protected under the First Amendment unless there is an imminent threat of violent action. In 2017, the Supreme Court reaffirmed that discriminating based on the content and viewpoint of speech is unconstitutional, making any hate speech ban inherently unconstitutional. It’s worth noting that other statutes, such as Title IV and Title IX, create anti-discrimination requirements universities who receive federal funding must obey. However, these don’t ban discriminatory speech unless it constitutes severe and persistent harassment. 

This explains why calls for genocide can be allowed on campus. Public universities are forced to follow the First Amendment, and private universities often choose to do so. Under the First Amendment, any restriction on free speech must be content-neutral. Hence calls for genocide can’t be banned just because they’re hateful and reprehensible. Even though genocide usually necessitates violence, advocating for this is allowed if there’s no imminent threat of it, and anti-discrimination statutes aren’t triggered by discriminatory speech unless they constitute severe, persistent harassment, so hate speech can’t be blocked on those grounds. 

Of course, there’s a difference between laws and morals. Most American college students reported that freedom of speech is critical to democracy, and the majority also believed that universities shouldn’t restrict controversial political opinions. However, the 2019 poll also showed that students view inclusivity as equally important to freedom of speech, and a clear majority (78%) believe that universities should be able to restrict the use of racial slurs. In other opinion polls, 79% of all respondents said that calling for genocide constituted hate speech, and 74% said that students who did so should be stopped and punished. Disaggregating the data by age shows that older people were more willing to restrict free speech than their younger peers (92% of those aged 65+ said the speech should be stopped and the speaker punished, compared to just 47% of those aged 18-24), showing that this attitude is not limited to younger people often stereotyped as “woke”. Meanwhile, the House passed a bipartisan resolution calling for the resignations of the Harvard and MIT presidents, proving there is bipartisan political support for anti-hate speech measures.

Most Americans, regardless of age and political ideology, don’t think hate speech should be protected. This moral and political opinion conflicts with jurisprudence around the First Amendment, which forbids restrictions based on the content/ideology of speech. Most activism around the Ivy League anti-semitism scandal is focused on getting the three presidents to resign, which is an understandable but ultimately short-sighted response. 

The First Amendment no longer reflects public morals. It’s about time Americans acknowledged that and pushed for changes in their free speech laws, for example by stripping hate speech of legal protection. A lot of difficult conversations lie ahead. Allowing restrictions on speech based on its ideological content means deciding which ideologies are and are not acceptable. Doing so in a way consistent with liberal democracy is challenging, especially as terms such as hate speech are not easy to define. That doesn’t mean it’s not possible. The Ivy League anti-semitism scandal suggests that most Americans agree advocating for genocide should be forbidden. It’s not much, but at least it’s common ground to build on. 

Featured image: Unsplash

Sabina Narvaez
Sabina Narvaez
Originally from Mexico, but mostly grew up abroad and has Spanish nationality. Studies Philosophy, Politics, Law and Economics and mostly writes about these topics. Also interested in sustainability.

More from Author



Please enter your comment!
Please enter your name here