The Campus Hearing Where Three Presidents Could Not Answer a Simple Question

Three university presidents sat at a witness table and were asked a yes-or-no question. They delivered a seminar. On December 5, 2023, before the House Committee on Education and the Workforce, the leaders of Harvard, the University of Pennsylvania and the Massachusetts Institute of Technology were asked, in effect, whether calling for the genocide of Jews would violate their universities' rules on bullying and harassment. The answer, from each of them in turn, was that it depended on the context.

It is rare for a congressional hearing to produce a moment that ordinary people replay in their kitchens. This one did. Within days one president had resigned, within a month another had followed, and a debate that campus administrators had hoped to keep in the faculty lounge was suddenly the country's business.

I want to take this episode seriously, because it is easy to treat it as a gotcha and move on. It is more important than that. The question the presidents flubbed was not really about genocide. It was about whether the rules of campus speech are applied by principle or by preference. And the answer exposes a double standard that conservatives have been describing for decades.

Terms and claims

Let me define the terms, because this subject is full of slippery words.

• Protected speech is expression the government may not punish. The First Amendment binds government, which includes public universities. It does not bind private ones, which are bound instead by the promises they make to students and faculty.
• Harassment is conduct, speech included, that targets a person or group and is severe and pervasive enough to deny them equal access to education. Title VI of the Civil Rights Act of 1964 bars discrimination based on race, color or national origin in programs that receive federal money, and the Education Department has treated antisemitic harassment as covered.
• True threat is a statement that conveys a serious intent to commit unlawful violence against a person or group. In Virginia v. Black (2003) the Court held that a state may ban cross burning done with intent to intimidate. In Counterman v. Colorado (2023) it held that the state must prove the speaker had at least a reckless mindset about the threatening nature of the statement.
• Incitement is advocacy directed to producing imminent lawless action and likely to do so, the standard from Brandenburg v. Ohio (1969), discussed in Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too.

My claim has four parts.

1. On the law, abstract advocacy of terrible things is protected from government punishment, but threats, targeted harassment and incitement are not.
2. A university's own policy is a different question from the Constitution's. A school may promise more speech protection than the First Amendment demands, or promise a civil campus, but it must keep whichever promise it makes.
3. The three presidents' answers revealed that their institutions did not apply their rules consistently, because each had punished or restricted other kinds of speech with far less hesitation.
4. The remedy is one rule, announced in advance and applied to every viewpoint: protect speech, punish threats and targeted harassment, and never decide which is which by asking whose speech it is.

What happened at the hearing

The hearing, titled as an inquiry into holding campus leaders accountable and confronting antisemitism, came two months after the Hamas attack on Israel on October 7, 2023, and in the weeks of campus protests that followed. Representative Elise Stefanik pressed each of the three presidents on whether calling for the genocide of Jews would violate the school's code of conduct. Claudine Gay of Harvard, Liz Magill of Penn and Sally Kornbluth of MIT each gave a version of the answer that it depended on the context, and each said that conduct, as distinct from speech, could cross the line. Stefanik followed up, pressing for a yes or no, and did not get one.

Here is a point of fairness. There is a legal sense in which the presidents' answers were not absurd. A lawyer would tell you that under the First Amendment a public university cannot discipline a student merely for abstract advocacy, even of something abhorrent, and that whether a particular statement is a threat or harassment does turn on facts: who said it, to whom, in what setting, with what intent. If the question had been put to a public university, the technical answer would have been closer to correct.

But the presidents were not running public universities, and the question was not what the Constitution requires. It was what their own rules said. And on that question, "it depends on the context" was an answer that could not be squared with the way those institutions had behaved.

The aftermath

The reaction was immediate. Within days, both Harvard and Penn issued statements. Magill said in a video statement that she should have focused on the fact that a call for genocide of Jewish people is a call for terrible violence and is deeply threatening. Gay told the Harvard Crimson she was sorry and that when words amplify distress and pain, regret is the only feeling left. Donors and alumni and trustees made their displeasure known. Magill resigned as Penn's president on December 9, 2023, and Gay resigned as Harvard's president on January 2, 2024. Kornbluth remained at MIT.

The debate that followed was messy and not always edifying. Some critics piled on for reasons that had nothing to do with campus speech, and the resignations became tangled up with other disputes. I will not defend every claim made by every participant. I am interested in the policy lesson, and it is clear.

The double standard

Here is the heart of the matter, and I will state it as a plain observation of the record. These were not institutions with a clean history of treating all speech neutrally. Before December 2023 they, like many elite universities, had spent years building a framework of speech rules and bias-reporting that treated some expression with great seriousness.

The history of campus speech codes is a long one. In 1989 a federal court struck down the University of Michigan's speech code in Doe v. University of Michigan, finding it overbroad and vague. In 1991, a federal court struck down a Wisconsin rule in UWM Post v. Board of Regents. In 1995, a California court, applying a state law, struck down Stanford's speech code in Corry v. Stanford. In 1992 the Supreme Court, in R.A.V. v. City of St. Paul, held that a city could not single out certain disfavored messages among forms of hateful speech for special punishment. The pattern is plain: administrators write rules to punish speech they dislike, and courts tell them the rules are too broad.

Private universities, not bound by the First Amendment, have often drifted into the same habits. In 1993 a University of Pennsylvania student, Eden Jacobowitz, was charged under the school's harassment policy after shouting a remark out of his dormitory window at a group of noisy students at night; the case became a national embarrassment, and the charges were dropped. Many campuses have since built bias-response teams, mandatory trainings and statements of values that discourage or discipline speech deemed offensive, usually under labels like "microaggressions" or "bias incidents."

And in the years before the hearing, the Foundation for Individual Rights and Expression, which rates colleges on their speech climates, gave Harvard one of the worst scores in the country in its ranking published in September 2023. I cite that to show how it looked from outside, not because any ranking is gospel. The point is that the institution asked in December whether the speech in question was protected had a reputation for being hostile to speech of many kinds.

Do the arithmetic of the double standard. A campus that reprimands a student for a remark about a classmate's accent, requires faculty to sign diversity statements, and investigates jokes at a party cannot, when asked about a call to kill Jews, retreat into a seminar on the importance of context. Either context matters in every case, which would mean the earlier, tougher treatment of far lesser speech was wrong, or context does not excuse this, which means the answer should have been an immediate yes. The presidents took the position that context mattered when the target was the group in question, and did not matter when it was anyone else. That is the thing the public heard, and it was not wrong to hear it.

The steelman

The strongest case for the presidents runs as follows.

They were lawyers' answers to a lawyer's question, given under hostile questioning by a member who had a clear goal. A university president who announces that any given phrase is automatically punishable would be creating a rule that could be applied to protests of all kinds, and that could, in a different political climate, be used against conservative students as easily as against anyone else. The Constitution does protect abstract advocacy, and a university that begins punishing speech because it is awful will find that the definition of awful moves. Context really does matter in harassment and threat law, as Counterman shows. The better reading of the exchange is that the presidents were trying to protect free speech principles and were undone by a format that rewarded a soundbite.

That is a serious argument, and one that conservatives ought to take seriously, because the principle of neutral protection serves them. The campus right has often been on the receiving end of speech codes.

The answer, point by point

One: the presidents were not asked to ban all awful speech. They were asked about a specific category, calls for genocide, which no serious speech policy treats as ordinary debate. A university can say, without damaging a single principle, that a call to kill a group of people is a threat or targeted harassment when directed at those people on that campus, and that it will be treated that way.

Two: the stated defense, that they were protecting speech, does not match their record. Institutions with a long, consistent history of protecting even offensive speech, the University of Chicago being the usual example with its statement on freedom of expression, known as the Chicago principles, can explain a context-dependent answer because they applied the same context to everything. These three could not.

Three: the context standard is not a license to refuse to answer. A rule can be context-sensitive and still be clear: advocacy in a classroom discussion, a protest chant that targets individuals, a campaign of intimidation outside a building. Those are different situations with different outcomes, and a president should be able to say so in a sentence.

Four: the sensible position is to protect speech and to enforce the line on threats and harassment evenly. If a school will not investigate a threat against a Jewish student, it should not investigate a joke about someone else's identity. If it will protect an unpopular conservative speaker from a heckler's veto, it should protect a pro-Palestinian student from the same. Consistency is the whole test.

What consistency requires

The founding commitment is that speech is protected because the alternative is that someone gets to decide which ideas are allowed. The First Amendment says Congress shall make no law abridging the freedom of speech, and the Fourteenth Amendment extended the principle to the states. The framers' view was that the remedy for bad speech is more speech and, where speech becomes threat, the law of threats. The universities that serve the public should abide by the same logic, and the private ones that advertise a free and open exchange of ideas should keep the promise.

Practically, that means a campus policy that does five things.

• It says in plain words that the university protects speech, including offensive speech, and will not punish ideas.
• It says in plain words that threats, targeted harassment and intimidation are not protected and will be punished.
• It defines those terms narrowly enough that they cannot swallow ordinary argument.
• It applies to every viewpoint and every speaker, with the same procedures and the same penalties.
• It has a president who can state it in two sentences.

The history of political violence in this country gives the stakes. Charlie Kirk was shot and killed on September 10, 2025, while speaking at Utah Valley University. A campus where people argue without fear is worth defending precisely because the alternative is not hypothetical.

For more on the surrounding questions, see Tinker's Black Armbands and the Rights Students Carry Through the School Gate on students' rights, The Hollywood Blacklist Was Wrong, and Conservatives Should Say So Plainly on what happens when a community decides some opinions disqualify a person, DEI Statements Were Loyalty Oaths, and the Old Oath Cases Show Why on compelled statements, and Seven Myths About Cancel Culture, Starting With the One That Says It Isn't Real on the larger pattern. The Court's long defence of unpopular speech is told in Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended.

The case in brief

1. On December 5, 2023, the presidents of Harvard, Penn and MIT told a House committee that whether calling for the genocide of Jews violated their rules depended on context; two of the three presidents were gone within weeks.
2. Constitutional law protects abstract advocacy from government punishment but not true threats, incitement or targeted harassment, and private universities are bound by their own promises.
3. The institutions' earlier enforcement of speech rules against far lesser speech meant that the context answer exposed a double standard, not a principle.
4. The cure is one rule, stated plainly and applied evenly: protect speech and punish threats and harassment, whoever is speaking and whoever is targeted.
5. Conservatives should demand that rule because it is the only one that will still protect them when the political winds change.

What you can do: read the free speech and harassment policy of a university you attend, fund or pay taxes to, and write to its president or trustees asking whether it applies equally to every viewpoint.