On Tuesday evening, one week after the Congressional hearing that prompted demands for President Claudine Gay’s dismissal and less than 12 hours after Harvard Corporation members released a statement confirming their support for her continued leadership, a group of scholars gathered at the Radcliffe Institute for a long-planned discussion of campus speech that had suddenly taken on new and urgent weight.
“I ask that we engage with one another as generous listeners, with open minds and hearts,” Radcliffe dean Tomiko Brown-Nagin, the evening’s moderator, urged the audience as the conversation got under way. (In-person attendance was limited to Harvard ID-holders, although about 1,100 viewers also joined the event online, logging in from countries around the world.) The wide-ranging discussion covered everything from microaggressions, threats, and nonviolent protest to academic freedom, First Amendment norms, and, as Brown-Nagin put it, “how to reconcile free speech, hate speech, and political speech” at universities like Harvard, where the Israel-Hamas war has inflamed on-campus tensions and sparked furious demonstrations, leading to the complaints of antisemitism that were the focus of Gay’s testimony before Congress.
Tuesday’s speakers referenced her testimony only fleetingly, but their remarks seemed to reflect a similar adherence to protecting academic freedom and free expression, and a reluctance to sanction political opinions that are unpopular or even offensive. “Sometimes verbal conduct is an act of harassment, or of bullying, or discriminatory conduct that violates University rules—and those things are not academic freedom,” said Watson professor of law Jeannie Suk Gersen. “But the more we expand what we think of and are willing to treat as disciplinable harassment, discrimination, and bullying, the less space there will be for free inquiry and exploration of ideas.”
Gersen also stressed the necessity of maintaining dialogue, even—especially—when it’s difficult or painful, and when prohibiting certain speech might seem like a more appealing option. Offensive speech shouldn’t be the end of the conversation, she argued, but the beginning of a “genuine engagement about why something was hurtful or wrong.” Regarding the current uproar over on-campus antisemitism, she added, “We can’t punish our way out of this.”
Other speakers offered similar arguments. Nadine Strossen ’72, J.D. ’75, a law professor emerita at New York University and former president of the American Civil Liberties Union (ACLU), reminded audience members of “the golden rule of free speech”—and of the stakes involved: “We literally are not going to have freedom for the speech that we love,” she said, “unless we also defend it for the speech that we loathe.” The ACLU has famously gone to court to defend the First Amendment rights of Nazi organizations, and Strossen explained why. “We’re not defending what the Nazis said. It’s really important to keep emphasizing that we are defending a principle, a principle that is essential for those who want to oppose…what the Nazis say.”
Keith E. Whittington, a Princeton professor of politics and the author of Speak Freely: Why Universities Must Defend Free Speech, talked about the relative newness of universities’ “somewhat fitful” commitment to protecting speech that challenges orthodoxies—“really only for the last 100 years or so”—and the continual struggle to “make real” those practices in the face of external pressure. “I find it particularly disturbing when universities find themselves engaged in a project of shrinking the boundaries of acceptable debate and what's going to be tolerated,” he said. “At the same time, I think it’s also true that one of the complicated things about building this kind of tolerance culture is that these are all going to be judgment calls. These are not bound rules. It’s always going to be the case that there are some things in some contexts that you find intolerable….In universities, we have a particular responsibility to make sure those margins are as wide as possible.”
Whittington and Gersen both belong to the Academic Freedom Alliance, a national organization advocating for the rights of college faculty members to speak, teach, and publish without fear of sanction; and Gersen is also a founding member of Harvard’s Council on Academic Freedom, formed earlier this year in response to what she described as a “slow erosion” of open inquiry that had recently “started to feel unbearable.” She recalled private conversations with students who told her they were afraid to speak their mind in class for fear of being shamed or ostracized. Meanwhile, she said, some colleagues have removed controversial topics like gender, sexual assault, or racial discrimination from their syllabi. She said they have told her it’s not worth the potential problems those classroom discussions could cause.
The fear of being ostracized, or even blackballed, for political views is sometimes borne out, she added. Since the start of the war in Gaza this fall, Gersen has provided legal representation to a number of former students now working in law firms, who are at risk of losing their jobs because they’d once joined pro-Palestinian organizations or were active in the BDS movement to boycott Israel. “They were asked to renounce their commitment to a pro-Palestinian perspective, to assure the clients of those firms, who complained, that the firm would not have people with those viewpoints,” Gersen said. (Later in the discussion, the subject also arose of job offers that had been rescinded because of students’ pro-Palestinian politics, and the billboard truck that drove through Harvard Square earlier this fall, displaying the names and faces of students allegedly affiliated with campus organizations who had signed a public letter claiming Israel was “entirely responsible” for the October 7 terrorist attacks.) “So this is actually happening,” Gersen said, “at firms where you would expect them to have a commitment to viewpoint diversity and liberal principles of free expression. It’s important for people to be very vigilant.”
In her questions, Brown-Nagin pressed the panelists to dig deeper into the tension between a wide definition of free speech and accusations that the University had allowed a climate of fear and intimidation to develop by not responding forcefully enough to antisemitic speech on campus. Some pro-Palestinian demonstrations have included chants such as, “From the river to the sea,” or “Globalize the intifada,” both associated with the elimination of Israel. Late last month, the Justice Department opened an investigation into Harvard and several other universities following complaints of antisemitism and discrimination.
On Monday, amid the uproar over Gay’s Congressional testimony, Conant University Professor Danielle Allen published an op-ed in The Washington Post that probed this very conundrum. “Avoiding violations of free-speech rights while correcting a pattern of generalized intimidation is much harder” than avoiding violations of academic freedom, she wrote. “But it’s not impossible.” Part of her answer had to do with balancing speech rights with “mutual respect.” She suggested reformulating a campus code of conduct to read, in part: “If the communications you use while protesting would constitute harassment if targeted at a specific individual, the presumption will be that the protest method is likely to create a pattern of generalized intimidation incompatible with a culture of mutual respect.”
At Tuesday’s event, quoting campus conduct policies that promise a litany of protections for students’ safety and wellbeing; their freedom of movement; their freedom from harassment, threats, and bullying that might inhibit their education and free expression, Brown-Nagin asked a related question: “How do we reconcile our commitment to protected political speech with our commitment to a campus that promises to our students all those things?” Some Harvard students, she added, arrive on campus when they are younger than 18, and some have experienced trauma, or intergenerational trauma. “It matters whose perspective one is taking, right?”
Erica Chenoweth, Stanton professor of the First Amendment at the Harvard Kennedy School (HKS) and Wallach professor at the Radcliffe Institute, gave an answer drawn from their experience on the working group that helped create a new University-wide anti-bullying policy earlier this year. Academic freedom—for everyone—was the “key principle,” Chenoweth said, that had animated the group’s work. Keeping in mind “egregious instances in which people have been bullied out of the institution,” the group wrote a minimal standard of conduct that was as narrow as possible while still being protective. At the same time, Chenoweth added, other working groups across the University (Chenoweth serves on one at HKS) are developing ways to promote more conversation: “How can we have real talk about hard things across serous differences? And the answer is you have to really intentionally build, not just a culture of mutual trust and respect, but also the skills to have these types of conversations—to convene them, to facilitate them, to recover from them.” (Read about the Faculty of Arts and Sciences’ initiative to develop and promote these skills.)
Gersen and Strossen, too, both talked about the importance of requiring their students to, as Strossen said, “understand, articulate, and advocate all plausible perspectives on all issues.” Gersen added, “I think that it is important for people to be able to articulate the points that they most disagree with. I feel very, very strongly about that....It is a teaching principle that works very well in the law school classroom, but also in all of the humanities and social sciences, where you have these debatable issues that are on the table.” For lawyers, this skill is a professional necessity, but the benefits are bigger and deeper than that. “It builds more empathy, too,” Gersen said. “We should not harden our hearts to arguments that we disagree with.”
Toward the end of the discussion, the speakers broached the thorny subject of whether and when universities ought to weigh in publicly on major world events. In the wake of many institutions’ mishandlings of public statements about the Israel-Hamas war, universities are rethinking their policies, said Whittington, who is co-editing a book on the topic. Taking a stance on controversial, contested issues can have unintended repercussions for academic freedom, he said—potentially affecting faculty hires, or silencing scholars from speaking. Gersen agreed, pointing specifically to public statements from Harvard administrators condemning George Floyd’s killing in 2020. (The events of the past few weeks have renewed attention in particular to Gay’s statement at the time, when she was dean of the Faculty of Arts and Sciences.)
Strossen, meanwhile, praised the Kalven Report, issued in 1967 by a University of Chicago faculty committee that was chaired by towering First Amendment scholar Harry Kalven. Amid the upheavals of the civil rights movement and anti-Vietnam war protests, the report recommended institutional neutrality as a way to preserve the academic freedom of individuals on campus.
Then Chenoweth raised their hand. “I broadly agree with everything that’s been said,” they offered, “but I still have very mixed feelings.” The George Floyd protests, they reminded the audience, took place in an unprecedented moment—the largest mass movement in the history of the United States, unfolding amid a global pandemic. In that context, Harvard’s painful racial history was also relevant, Chenoweth argued, because “the promise of academic freedom and the promise of free expression that’s held up by this University…had not actually been equally applied to everyone.” In the summer of 2020, students “needed to hear that they’re welcome here, they belong here, that we see what’s happening,” they said. “We have to take care of the people in our care, when they’re here to learn. We have to extend academic freedom equally. And we have to acknowledge when things are happening in the world for them, that are changing their lives—and in ways that none of us have ever experienced or imagined.” As Chenoweth finished speaking, people in the audience began clapping, the only spontaneous applause all evening.
