Following Liz Magill’s resignation and a rise in antisemitism and other forms of hate, there are calls for the University of Pennsylvania to reevaluate its policy on free expression. Claire Finkelstein, who sits on Penn’s Committee on Open Expression and is chair of University of Pennsylvania Carey Law School’s Committee on Academic Freedom, argued in The Washington Post that it is “time for university presidents to rethink the role that open expression and academic freedom play in the educational mission of their institutions.”
Penn, a private institution, has wide latitude to craft its own policies on free expression. It is not bound by the First Amendment. Nevertheless, recognizing the importance of free inquiry in a university setting, Penn has developed a speech code that, in many respects, mirrors First Amendment doctrine and values. Finkelstein is correct to point out that Penn has often failed to live up to these values in practice. But a failure to consistently uphold free speech principles does not mean that a commitment to these values should be curtailed.
Finkelstein’s proposal to reevaluate Penn’s speech codes is misguided. She asserts that “calls for genocide against Jews — or even proxies for such sentiments, such as calling for intifada against Jews or the elimination of Israel by chanting ‘from the river to the sea’ — are, in the present context, calls for violence against a discrete ethnic or religious group.”
A speech policy that sanctions “proxy” speech is functionally unworkable. What one person interprets as an expression equivalent to urging genocide, another might interpret as classic free speech. For instance, imagine that I stand in Penn Carey Law’s courtyard and chant: “Israel has a right to defend itself. Israel should continue to bomb Gaza until the hostages are released. No cease-fire.” Undoubtedly, some would view my words as advocating genocide. Conversely, imagine I chant: “Israel has no right to exist; from the river to the sea, Palestine will be free.” Again, some would view my words as advocating genocide.
This issue extends beyond the Israel-Palestine conflict. Under Finkelstein’s proposal, might students who argue for the rights of pregnant women be accused of calling for genocide against unborn fetuses? Would protesters who call for the end of American involvement in Russia’s war against Ukraine be accused of sanctioning genocide against citizens of Ukraine?
Some may question the moral equivalency of these statements. But that is exactly the point. Under Finkelstein’s proposal, university administrators would be tasked with determining what constitutes sanctionable “proxy” speech. Magill, who endorsed free speech on campus while president, changed course in the face of donor revolt. (Marc Rowan, Chair of Wharton’s Board of Advisors, sent at least 40 days of “protest” emails to Penn Board of Trustees, urging Magill’s resignation.) The fact that the determination as to what constitutes actionable “proxy” speech can be influenced by the demands of donors is even more troubling. Calls for moral clarity may soon give way to censorship.
Finkelstein argues that “privileging free speech on campus relative to other values emphasizes skills that pose the greatest challenge to our democracy and fails to cultivate the skills democratic societies most need,” including “the ability to engage in reasoned dialogue with people who have moral and political differences.” Such an articulation turns the value of free expression on its head. As this country’s history has demonstrated time and time again — from abolitionism to the civil rights movement to protests against the Vietnam War — free speech is not an impediment to reasoned dialogue or moral reflection. Rather, it is the very foundation.
Our “profound national commitment” to free speech — including speech we find abhorrent — has been fundamental in bringing about social, political, and scientific progress. To that end, Penn should reaffirm its institutional commitment to the protection of free expression and the equal enforcement of its policies, regardless of the political message.
SAM RUDOVSKY is a Penn Carey Law third-year. His email address is firstname.lastname@example.org.