In our book, we deliberately chose not to discuss hate speech in terms of “harm,” and we specifically critiqued the proposition that (as one of our colleagues put it) “a commitment to inclusivity requires that impact is elevated over intent.” In other words, we insisted that the way to determine the difference between free speech and hate speech is to rely neither on intention nor effect but on the context of the statement. After 9/11, for example, some people tried to claim that “Allahu akbar” is an endorsement of terrorism, and we suspect that something similar is going on now with the word “intifada,” which Stefanik, in grilling the university presidents, (inaccurately) conflated with calling for the genocide of Jews. These are disputes about contexts.
Some after-the-fact commentators have admitted as much—that Magill, Kornbluth, and Gay were technically correct about context. But no one has asked the basic question one of our colleagues—Adam Sitze, professor of law at Amherst College—has asked us: Why is everyone assuming that university presidents are free speech czars responsible for maintaining the parameters of what is and is not utterable on their campuses?
We don’t do things this way in government, after all. The executive branch does executive things, and the judiciary—the independent judiciary—handles matters of justice. Universities aren’t set up the same way, of course. But wouldn’t it be better for all concerned if they were? If there are disputes about the boundary between free speech and hate speech, why shouldn’t these be adjudicated by a joint campus office made up of faculty, students, and administrators overseeing faculty and student affairs? Why are we all presuming that this is the domain of the university president, instead of arguing that university presidents, like American presidents, should let the judicial branch set the boundary between free speech and hate speech?