If that's the case, then the policies to silence conservative speech are also illegal.

wifeisafurd said:

---

tequila4kapp said:

---

wifeisafurd said:

---

The fact that 3 Presidents of our top Universities, including one who is Jewish, couldn't say that was offensive or wrong is problematic. No problem with that.

But this may come as a shock, but calling for genocide is protected speech, despite your comments to the contrary.
***

---

Let me begin by saying my post used terribly imprecise language; your 1st Amendment focused critique is almost certainly correct. However, we have the confluence of 1st Amendment and school policies.

Harvard's Non-Discrimination Policy: https://provost.harvard.edu/files/provost/files/non-discrimination_and_anti-bullying_policies.pdf

The policy explicitly states that words alone can be bullying so President Gay was 100% wrong to say the speech had to cross over into conduct to be bullying. Easy.

The policy essentially invokes a "reasonableness" standard in assessing the severity of the speech as it relates to bullying and discrimination. In an environment where using the wrong pronoun and microaggressions can be a violation of a bullying policy and where students are given safe spaces to protect them from unwanted speech, calling for genocide of an entire religious group (ie, protected class) has to be pervasive enough to equal bullying. This is obvious and easy.

There are hypothetical variations of the question that would not be easy, would depend on judgment and context and which I personally would not consider bullying. For example, "Does calling for the genocide of Jews with the phrase 'From the river to the sea' constitute bullying?" Because the phrase can mean different things to different people it is in a different class than explicitly calling for the genocide of a religious group.

In any case, President Gay's subsequent statement makes this clear: "...calls for violence against our Jewish community threats to our Jewish students have no place at Harvard and will never go unchallenged."

So...my poor language couching this exclusively in the First Amendment was bad/wrong. But the overarching point was correct - this is not protected speech under the school's policies, and it really isn't even close.

---

There are a couple of comments that need to take a step back, because they are flat wrong in the case of Harvard. The harassment codes arise out of requirements set by Title 9 Regulations, and by legislative action apply to all private schools. So the question Unit 2, you and others are asking is why does Harvard through a Congressional action not get to override the first amendment. The answer from the courts has constantly been it doesn't for various reasons.

But let's take a further step further back. Harvard (as opposed to the HLS which told the Dept. of Education what they could do with their regulations) did pass codes which outlaw even micro-aggressions. So technically the answers to Stefanic is yes. But that doesn't mean the First Amendment rights don't apply. The Presidents clearly had been told they do, which is why you got all the word salad about repetitive actions, content, etc. Otherwise why not simply say yes and get yourself off the hot seat?

Private universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselvesand sold themselvesas bastions of free thought and expression. Accordingly, private colleges and universities are constantly held by the courts to be government actors. Harvard is one such school. Then there is the another major problem, that state law forbids all private, nonreligious universities in California, Massachusetts (under the Massachusetts Civil Rights Act) and any most other states from disciplining students for speech that is protected by the First Amendment or the State Constitution. We have all been through this issue with Stanford, where the Law Dean wrote a very long letter to alumni and students telling them the !st Amendment applies and that the Diversity Dean who told the Judge that the students could stop the Judge from speaking (I appreciate this is loose language) denied both the Judge and the student group inviting the Judge their 1st amendment rights to speak. Students and faculty may also be able enforce as a matter of contract law\ academic freedom policies that state in broad terms that members of the faculty and student body have the right to engage in scholarship, teaching, and expression that can clash with the views of the institution.

The premise that these codes of conduct somehow supersede the First Amendment in the case of Harvard are simply wrong, and so is the analysis that arises from that premise. Nice try.

---

What are you going to say when they finally acknowledge that genocidal chants are actually harassment which are prohibited by their policies?

Harvard wants to have its cake and eat it too. It recently got last place in the 2024 College Free Speech Rankings. Sure, you could argue that there is some false precision there, but the fact that it got last (6 standard deviations below the average) means there is probably something to it. It actually had a negative score on a 0 to 100 scale. Of course the second to last place finisher was Penn. Only a third of Harvard students think that the University protects free speech.

Just a few years ago Harvard retracted the acceptance of a kid who publicly made racial slurs on social media (first amendment protected speech). Just in case you are wondering, Harvard explicitly told him they were retracting his admission as a result of the statements. In 2021, Harvard forced a student to take down a flag in a dorm window depicting a rapper in a bikini saluting the American flag because people might find it offensive. Was that flag protected 1A speech? Was it as offensive as calls for genocide?

So we know it is simply untrue that Harvard permits all first amendment protected speech.

And it's not just how Harvard operates in practice as their policies don't protect protected speech. The org which ran the aforementioned analysis has some examples on hits Harvard page. Here's one that seems pretty relevant in 2023: their computer use policy requires users to be civil when using the campus network. Is it civil to call for genocide? Are uncivil matters protected 1A speech? I think we know the answer to these questions but Harvard is still dancing around trying to figure it out.


So whether Harvard disagrees with your analysis or not, it's pretty clear they aren't applying it.

Unit2Sucks said:

---

What are you going to say when they finally acknowledge that genocidal chants are actually harassment which are prohibited by their policies?



So whether Harvard disagrees with your analysis or not, it's pretty clear they aren't applying it.

---

First sentence: I don't think they will, at least not without a word salad full of equivocation.

Second sentence:

Back to School Basics: Rights to Free Speech in Higher Education https://wp.me/p8asZ9-Fu

That said, regardless of federal and state law discussed in the article, Harvard has more money than God. You want to play Don Quixote and represent the student who had to remove the poster on contingency? Of course they will flaunt the constitution.

wifeisafurd said:

---

tequila4kapp said:

---

wifeisafurd said:

---

The fact that 3 Presidents of our top Universities, including one who is Jewish, couldn't say that was offensive or wrong is problematic. No problem with that.

But this may come as a shock, but calling for genocide is protected speech, despite your comments to the contrary.
***

---

Let me begin by saying my post used terribly imprecise language; your 1st Amendment focused critique is almost certainly correct. However, we have the confluence of 1st Amendment and school policies.

Harvard's Non-Discrimination Policy: https://provost.harvard.edu/files/provost/files/non-discrimination_and_anti-bullying_policies.pdf

The policy explicitly states that words alone can be bullying so President Gay was 100% wrong to say the speech had to cross over into conduct to be bullying. Easy.

The policy essentially invokes a "reasonableness" standard in assessing the severity of the speech as it relates to bullying and discrimination. In an environment where using the wrong pronoun and microaggressions can be a violation of a bullying policy and where students are given safe spaces to protect them from unwanted speech, calling for genocide of an entire religious group (ie, protected class) has to be pervasive enough to equal bullying. This is obvious and easy.

There are hypothetical variations of the question that would not be easy, would depend on judgment and context and which I personally would not consider bullying. For example, "Does calling for the genocide of Jews with the phrase 'From the river to the sea' constitute bullying?" Because the phrase can mean different things to different people it is in a different class than explicitly calling for the genocide of a religious group.

In any case, President Gay's subsequent statement makes this clear: "...calls for violence against our Jewish community threats to our Jewish students have no place at Harvard and will never go unchallenged."

So...my poor language couching this exclusively in the First Amendment was bad/wrong. But the overarching point was correct - this is not protected speech under the school's policies, and it really isn't even close.

---

There are a couple of comments that need to take a step back, because they are flat wrong in the case of Harvard. The harassment codes arise out of requirements set by Title 9 Regulations, and by legislative action apply to all private schools. So the question Unit 2, you and others are asking is why does Harvard through a Congressional action not get to override the first amendment. The answer from the courts has constantly been it doesn't for various reasons.

But let's take a further step further back. Harvard (as opposed to the HLS which told the Dept. of Education what they could do with their regulations) did pass codes which outlaw even micro-aggressions. So technically the answers to Stefanic is yes. But that doesn't mean the First Amendment rights don't apply. The Presidents clearly had been told they do, which is why you got all the word salad about repetitive actions, content, etc. Otherwise why not simply say yes and get yourself off the hot seat?

Private universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselvesand sold themselvesas bastions of free thought and expression. Accordingly, private colleges and universities are constantly held by the courts to be government actors. Harvard is one such school. Then there is the another major problem, that state law forbids all private, nonreligious universities in California, Massachusetts (under the Massachusetts Civil Rights Act) and any most other states from disciplining students for speech that is protected by the First Amendment or the State Constitution. We have all been through this issue with Stanford, where the Law Dean wrote a very long letter to alumni and students telling them the !st Amendment applies and that the Diversity Dean who told the Judge that the students could stop the Judge from speaking (I appreciate this is loose language) denied both the Judge and the student group inviting the Judge their 1st amendment rights to speak. Students and faculty may also be able enforce as a matter of contract law\ academic freedom policies that state in broad terms that members of the faculty and student body have the right to engage in scholarship, teaching, and expression that can clash with the views of the institution.

The premise that these codes of conduct somehow supersede the First Amendment in the case of Harvard are simply wrong, and so is the analysis that arises from that premise. Nice try.

---

You misunderstand my position. They shouldn't put aside the 1st Am. Never. On the contrary, their published policies define permissible restrictions on expressive behavior consistent with their 1st Am responsibilities.

On top of that I suspect their administration of the policies must satisfy Due Process requirements. Enforcing the standards to conclude that micro aggressions against one protected class are a violation but then concluding explicit calls to commit genocide against another protected class are permissible under the same standards is nonsensical.

wifeisafurd said:

---

calbear93 said:

---

wifeisafurd said:

---

Unit2Sucks said:

---

wifeisafurd said:

---

tequila4kapp said:

---

wifeisafurd said:

---

Zippergate said:

---

Two thoughts. It doesn't sound like Harvard alum Stefanki will be making her donation this year. The other is I'm glad I'm not the President of a major college these days. There is a move by Harvard alums to dump the current President, as she runs the gauntlet between pissing off students or alums.

I dunno. Harvard could set sane, reasonable standards of conduct and discourse and dismiss any student who refuses to abide by them. Problem solved.

---

This is a generational thing to some degree. Students want safe spaces to not be offended, yet the right to protest and offend. Then there are Harvard alums, who trend towards being ultra establishment, and don't find anything students do or say to be reasonable. And then there is the pesky right of free speech thing in the constitution. All problems once you go down the slippery road of restraining speech with "reasonable standards." What is reasonable then will always depend on context, which is exactly what all 3 Presidents said. .

---

Disagree. Free speech is not absolute. It is never okay to call for the genocide of a race of people. Change the terms just a tiny bit…could there ever be a context in which it would be okay for white people to call for the death of all African Americans? This isn'teven close to being a tough free speech question.

This is such as easy one. "Students are allowed to peacefully protest and express themselves in virtually all circumstances, but it is never okay to call for the murder of others, much less others based on a protected class. That is not protected speech." The fact the 3 presidents couldn't say anything close to that and instead had the "context" answer, which implies that there is some instance where it is okay…well, they deserve every ounce of whatever professional consequences that comes their way.

---

The fact that 3 Presidents of our top Universities, including one who is Jewish, couldn't say that was offensive or wrong is problematic. No problem with that.

But this may come as a shock, but calling for genocide is protected speech, despite your comments to the contrary.

There is no First Amendment exception for hate speech, and clearly that is at odds with your thoughts when you start saying well what happens if you use another group, much less when you go down the path of "protected classes". Students are allowed to have and expouse racist or sexist opinions (interestingly sexual obscene such as pornography is not protected). (This may not be the case for an employee such as a faculty member). The First Amendment fully protects speech that is unpopular, offensive or wrong. It is black letter law that racist, misogynist, homophobic, and [fill in a protected group speech] is protected, and Stefanki didn't give any specifics in the hypothetical that would fit an exception. Now there are exceptions to the protected speech and the codes of conduct, at least at a place like Harvard, make use of these exceptions to try and stop have speech. But when litigated, as discussed below, the broadly drafted college codes are found wanting (see the discussion of harassment below).

I also disagree with your views on this not being a tough free speech question because you can never call for the geocode of people -the law actually says you can. Look there is free speech for hate mongers and those the utter offensive speech, as a general rule. Calling for the death of all police, faculty, schools administrators, the French (been watching some British comedies lately), the Saudi Royals, Jews (even while dressed in a Ku Klux Klan or Nazis dress while walking though a Jewish neighborhood) or screaming death to all black people while in a moving car in Harlem is in fact protected speech, and there is plenty of case law to back that-up (okay, not the French commentary in British comedies). Mere advocacy of lawbreaking, violence or death is in fact protected speech as long as it is not intended to and likely to provoke immediate unlawful action. Brandenburg v. Ohio. Chanting something in a demonstration, or yelling something stupid is protected. You even can give charged speech (including to do away with a race of people) to a restless crowd. Terminiello v. Chicago. Again, Stefanki didn't provide any context how saying the genocide for Jews meets this exception.

There is also no general First Amendment exception for "harassment," and courts have struck down anti-harassment regulations and laws for overbroad language reaching a substantial amount of protected speech. In the educational context, the Supreme Court held in the Davis vs, Monroe County that student-on-student harassment consists only of unwelcome, discriminatory conduct (which may include expression) that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." By definition, this includes only extreme and usually repetitive behavior behavior so serious that it would prevent a reasonable person from receiving his or her education. The college Presidents kept trying to insert language into Stafanki's base hypothetical, to meet the exception for repetitive behavior, because the wanted to say yes, calling for genocide violates our Codes, and got in trouble for it. But absent an exception which could not be deduced from Stafanki's simple question, that is protected speech.

Those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular group of individuals is also an exception..The problem again with Stafanki's hypothetical is she didn't provide context, and made such a general if someone says something inquiry where the SCOTUS, in its wisdom, has said context is required.

Finally, there are fighting words are those that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, with no time to think things over. Basically, you have to have face-to-face physically imposing communications (think a demonstrator that seeks out a counter demonstrator and gets into it) that would obviously provoke an immediate and violent reaction from the average listener. One of the Presidents mentioned that and got shot down by Stefanki.

There are exceptions to the protected speech and the codes of conduct, at least at a place like Harvard, make use of these exceptions. At the risk of being repetitive, the Presidents kept trying to fit Stafanki's base hypothetical within one of the narrow exceptions so they could say yes, it fits our code, but the bottom line is calling for the genocide of people is protected speech, absent there exceptions.

And the other part about the present situation (which didn't hit the media) is that a lot of people at these demonstrations are not students or employees, but outsiders who the University has no jurisdiction over with respect to their codes of conduct.

The Presidents also talked about physical acts in hopes of being able to say yes. The First Amendment does not protect civil disobedience, violent of peaceful, and the School can place time, place and manner restrictions that are issue or group nuetral, and again the Presidents wee trying to button hole Stafanki into providing facts on which President's could act. She didn't rise to the bait.

You might ask why this is allowed in our democracy? Silencing others doesn't often work. Other groups on campus have the same right as you to make their voices heard, even if you don't agree with them. You can always learn from talking and debating with people who disagree with you. The speech codes deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find offensive. The best way to challenge calls for genocide is to challenge those calls, not suppress them. In that regard, the 3 Presidents failed (see my first sentence).

---

Why would you invoke the first amendment unless Harvard's policy is intended to permit all first amendment protected speech?

I might be wrong, but isn't Harvard one of the schools that limits free speech that could be seen as harassing? And that it could even include micro aggressions?

Just spitballing, but if you aren't going to permit all 1A protected speech, why would you permit calls for genocide? That seems like one of the first things you would prohibit.

Saying that calls for genocide are not acceptable speech on a college campus which prohibits other protected speech is pretty easy.

---

I'm admittedly not sure, and in talking with some HLS alum, they are not either. I know as an employer, our employee handbook outlawed all sorts of conduct and speech, but always had an intro, which started except for constitutional or otherwise legally protected communication, you can't do [then came a long list]. Given all the lawyers running around the Harvard campus, it is hard to believe the college's codes of conduct would not carve out legally protected speech and conduct.

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I think you are getting confused by the affirmative action case. Harvard is not a state actor. It is however subject to title vi of the civil rights act, and title vi is treated tantamount to equal protection clause in interpretation. In no actual instance would any legal scholar view Harvard a state actor. You say you have spoken with fellow HLS alums. So have I especially as to the embarrassment for the school. No one even mentions Harvard as a state actor.

State law requires Harvard to apply first amendment? If that is the case, how does Harvard prohibit use of racial epithets? How does Harvard require speech that protects the sensibility of LBGTQ community?

Contract? Breaking contract is not illegal. Let them sue for damages.

Violence is just one example. My point is that freedom of speech is not absolute. You cannot scream fire in a crowded theater. Even in the context of education, Davis vs Monroe Board of Education created exception when such pervasively offensive speech prevents equal access to education. The point is that there is exceptions as long as it passes the strict scrutiny of compelling state interest with narrowly tailored law.

But that does not matter since Harvard is not a state actor. That is why, unlike UNC case, the Harvard case was brought under title vi. It got confusing because certain portion of the opinion refers to equal protection clause until other portions of the opinions clarifies that title vi is interpreted exactly like equal protection clause when applied to private actors.

But otherwise your post was great.

wifeisafurd said:

---

calbear93 said:

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I linked their policy document. Paraphrasing, words alone that a reasonable person would find threatening and beyond the norms of civil discourse is impermissible bullying. That is their policy. They've got a few lawyers at their disposal. It's safe to conclude they conclude their policies are 1st Am compliant.

tequila4kapp said:

---

wifeisafurd said:

---

calbear93 said:

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I linked their policy document. Paraphrasing, words alone that a reasonable person would find threatening and beyond the norms of civil discourse is impermissible bullying. That is their policy. They've got a few lawyers at their disposal. It's safe to conclude they conclude their policies are 1st Am compliant.

---

That would not pass the first amendment test. But it's ok because, Harvard is a private organization unlike UC Berkeley and, similar to twitter, can impose restriction on speech as it does in that policy that a state actor like UC Berkeley could not.

tequila4kapp said:

---

wifeisafurd said:

---

tequila4kapp said:

---

wifeisafurd said:

---

The fact that 3 Presidents of our top Universities, including one who is Jewish, couldn't say that was offensive or wrong is problematic. No problem with that.

But this may come as a shock, but calling for genocide is protected speech, despite your comments to the contrary.
***

---

Let me begin by saying my post used terribly imprecise language; your 1st Amendment focused critique is almost certainly correct. However, we have the confluence of 1st Amendment and school policies.

Harvard's Non-Discrimination Policy: https://provost.harvard.edu/files/provost/files/non-discrimination_and_anti-bullying_policies.pdf

The policy explicitly states that words alone can be bullying so President Gay was 100% wrong to say the speech had to cross over into conduct to be bullying. Easy.

The policy essentially invokes a "reasonableness" standard in assessing the severity of the speech as it relates to bullying and discrimination. In an environment where using the wrong pronoun and microaggressions can be a violation of a bullying policy and where students are given safe spaces to protect them from unwanted speech, calling for genocide of an entire religious group (ie, protected class) has to be pervasive enough to equal bullying. This is obvious and easy.

There are hypothetical variations of the question that would not be easy, would depend on judgment and context and which I personally would not consider bullying. For example, "Does calling for the genocide of Jews with the phrase 'From the river to the sea' constitute bullying?" Because the phrase can mean different things to different people it is in a different class than explicitly calling for the genocide of a religious group.

In any case, President Gay's subsequent statement makes this clear: "...calls for violence against our Jewish community threats to our Jewish students have no place at Harvard and will never go unchallenged."

So...my poor language couching this exclusively in the First Amendment was bad/wrong. But the overarching point was correct - this is not protected speech under the school's policies, and it really isn't even close.

---

There are a couple of comments that need to take a step back, because they are flat wrong in the case of Harvard. The harassment codes arise out of requirements set by Title 9 Regulations, and by legislative action apply to all private schools. So the question Unit 2, you and others are asking is why does Harvard through a Congressional action not get to override the first amendment. The answer from the courts has constantly been it doesn't for various reasons.

But let's take a further step further back. Harvard (as opposed to the HLS which told the Dept. of Education what they could do with their regulations) did pass codes which outlaw even micro-aggressions. So technically the answers to Stefanic is yes. But that doesn't mean the First Amendment rights don't apply. The Presidents clearly had been told they do, which is why you got all the word salad about repetitive actions, content, etc. Otherwise why not simply say yes and get yourself off the hot seat?

Private universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselvesand sold themselvesas bastions of free thought and expression. Accordingly, private colleges and universities are constantly held by the courts to be government actors. Harvard is one such school. Then there is the another major problem, that state law forbids all private, nonreligious universities in California, Massachusetts (under the Massachusetts Civil Rights Act) and any most other states from disciplining students for speech that is protected by the First Amendment or the State Constitution. We have all been through this issue with Stanford, where the Law Dean wrote a very long letter to alumni and students telling them the !st Amendment applies and that the Diversity Dean who told the Judge that the students could stop the Judge from speaking (I appreciate this is loose language) denied both the Judge and the student group inviting the Judge their 1st amendment rights to speak. Students and faculty may also be able enforce as a matter of contract law\ academic freedom policies that state in broad terms that members of the faculty and student body have the right to engage in scholarship, teaching, and expression that can clash with the views of the institution.

The premise that these codes of conduct somehow supersede the First Amendment in the case of Harvard are simply wrong, and so is the analysis that arises from that premise. Nice try.

---

You misunderstand my position. They shouldn't put aside the 1st Am. Never. On the contrary, their published policies define permissible restrictions on expressive behavior consistent with their 1st Am responsibilities.

On top of that I suspect their administration of the policies must satisfy Due Process requirements. Enforcing the standards to conclude that micro aggressions against one protected class are a violation but then concluding explicit calls to commit genocide against another protected class are permissible under the same standards is nonsensical.

---

Oh, I would agree with that as a practical matter. I just think Harvard will do whatever Harvard wants to do. They are not upsetting the protestors who are out there chanting, but will say whatever they think it takes to make the donors and pols happy. The President just bungled her testimony by not condemning genocide, but legally, she was trying to repeat what the lawyers told her about the first amendment rights, so the all the TV legal commentators would say she had it right. That didn't work.

BTW, the reports are that all this has cost Harvard $1 billion in donations, which might sound scary if their reported endowment wasn't $61 Billion as of 2022.

Fox BusinessHarvard president's handling of antisemitism has cost school more than $1 billion: Ackman11 hours ago

calbear93 said:

---

tequila4kapp said:

---

wifeisafurd said:

---

calbear93 said:

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I linked their policy document. Paraphrasing, words alone that a reasonable person would find threatening and beyond the norms of civil discourse is impermissible bullying. That is their policy. They've got a few lawyers at their disposal. It's safe to conclude they conclude their policies are 1st Am compliant.

---

That would not pass the first amendment test. But it's ok because, Harvard is a private organization unlike UC Berkeley and, similar to twitter, can impose restriction on speech as it does in that policy that a state actor like UC Berkeley could not.

---

That is wrong. Private colleges in Mass have to follow the First Amendment under Mass Law and moreover there is plenty of case laws that says Harvard has an obligation to follow under Federal law. The reason the Presidents kept repeating the words repetitive, severe, context, etc. is because they are verbatim directly out of the Supreme Court first amendment opinion with respect to harassment policies in the Davis case, which decision the federal courts have held applies to private institutions like Harvard. I can try to bring the horse to water, but I can't make it drink.

wifeisafurd said:

---

calbear93 said:

---

tequila4kapp said:

---

wifeisafurd said:

---

calbear93 said:

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I linked their policy document. Paraphrasing, words alone that a reasonable person would find threatening and beyond the norms of civil discourse is impermissible bullying. That is their policy. They've got a few lawyers at their disposal. It's safe to conclude they conclude their policies are 1st Am compliant.

---

That would not pass the first amendment test. But it's ok because, Harvard is a private organization unlike UC Berkeley and, similar to twitter, can impose restriction on speech as it does in that policy that a state actor like UC Berkeley could not.

---

That is wrong. Private colleges in Mass have to follow the First Amendment under Mass Law and moreover there is plenty of case laws that says Harvard has an obligation to follow under Federal law. The reason the Presidents kept repeating the words repetitive, severe, context, etc. is because they are verbatim directly out of the Supreme Court first amendment opinion with respect to harassment policies in the Davis case, which decision the federal courts have held applies to private institutions like Harvard. I can try to bring the horse to water, but I can't make it drink.

---

I am trying to give you some latitude but you cannot seem to take it. For a lawyer, you are very imprecise and seem unable to parse basic constitutional law.

First Amendment - Freedom of speech prohibits CONGRESS from abridging the freedom of speech. That is a broad restriction and protects any speech. The 14th Amendment extends that prohibition to STATES. The courts have created exceptions where there is compelling STATE interest that is narrowly tailored to protect that interest. Courts have applied the fourteenth amendment to government entities like public universities but never to private entities.

You write, as if you are not a lawyer, that because certain federal law laws apply to Harvard that the First Amendment also applies to Harvard. NO IT DOES NOT. Title VI, a Federal law, relating to equal protection applies to Harvard through the Civil Rights Act congress created through the negative commerce clause for universities that accept federal funding. BUT THAT DOES NOT MEAN THE FIRST AMENDMENT NOW APPLIES TO HARVARD. A basic google search will tell you that. IF EQUAL PROTECTION APPLIED TO PRIVATE UNIVERSITY BECAUSE THEY ARE STATE ACTORS, TITLE VI WOULD NEVER HAVE BEEN REQUIRED TO PROVIDE EQUAL PROTECTION AT PRIVATE UNIVERSITIES.

You say Mass requires private colleges to follow that First Amendment? Nowhere does the Mass Civil Rights Act apply the actual First Amendment to PRIVATE universities. Show me the clause that REPLICATES the first amendment to PRIVATE universities. Because if it did, Harvard could not currently prohibit speech relating to LBGTQ or racial discrimination that it currently does. Get it? It already restricts speech. The presidents already clarified that the speech in question actually violates their speech code, which they couldn't have or enforce if it were subject to the first amendment.

Yes, policies can protect freedom of speech but policies are not broad rights of the first amendment (again see policies restricting use of racial slurs at Harvard that it could not do if it were Congress or a State). And policies can and are often updated. What they should have stated is that, they personally are utterly offended by the speech calling for hatred of any one group but that, in this fragile situation, being too heavy handed in enforcement would only escalate the tension. Instead, they will review at a later time to assess violation of the speech code and ensure safety of the students on both sides. They fumbled and did not make what was basic obvious.

You cannot take strict scrutiny standard in freedom of speech cases for congress and state and apply that to Harvard because there is some reference to speech in their own policy or Mass Civil Rights Law. How can you not know this?

Hope this article helps people who do not understand the more flexibility Harvard has to restrict speech as it already does:

https://theconversation.com/why-university-presidents-find-it-hard-to-punish-advocating-genocide-college-free-speech-codes-are-both-more-and-less-protective-than-the-first-amendment-219566#:~:text=Harvard%20provides%20an%20example%20of,"bounds%20of%20reasoned%20dissent."

Mass.Gen.Laws ch. 12, 11HI (1986).

BTW, when I have some time, I will post numerous articles and cases whereby Harvard and other Mass colleges had the first amendment applied. Good grief you could just read the articles I posted.

wifeisafurd said:

---

Mass.Gen.Laws ch. 12, 11HI (1986).

BTW, when I have some time, I will post numerous articles and cases whereby Harvard and other Mass colleges had the first amendment applied. Good grief you could just read the articles I posted.

---

I did read the article, and the article does not state what you think it states. I can explain that to you in even more basic elementary school terms as if you never actually went to law school. And I will below.

And that statue is not what you think it means. Because if you read it the way you do, private employers, private commercial owners or individual persons in their homes could not restrict speech under that statute. It is baffling to me that you actually studied constitutional law.

What the statue means is that, when a person otherwise has constitutional right, someone cannot use force to limit that right.

But there is no constitutional right not to have speech restricted in a voluntary, private association, such as an at-will employment by a private employer, attendance at a private university, or being invited to someone's house. The way you are reading it (since it applies not just to private universities but any person), even parents could not restrict the speech of their kids at home. That's laughably false.

Mass Gen. Law ch. 12, 11HI (1986): "Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. Said civil action shall be brought in the name of the commonwealth and shall be instituted either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the person whose conduct complained of resides or has his principal place of business."


Again baffling. How the heck do you read that and come to your conclusion? Is your brilliant legal conclusion that no one anywhere under any circumstances can restrict speech? Even parents with respect to their kids? Or could it possibly apply only in situations where people have expectations and actual right of freedom of speech such as public, state owned arena and not on campus of a private university?

Also, here is the relevant portion of your article (which you clearly did not read yourself):

"Private universities, in contrast, generally do not have to abide by the First Amendment definition of freedom of speech. (State laws vary on this. Some states, like California, have imposed First Amendment-type limitations at private colleges by state law, and in Massachusetts, a private university may be liable under the Massachusetts Civil Rights Act if it interferes with a student or faculty member's constitutionally protected speech through threats, intimidation, or coercion.) As we have noted on this blog before, colleges that are not state-sponsored are typically governed by their established policies, particularly those in their student and faculty handbooks. Many schools have explicit academic freedom policies or have general language in their mission statements about the importance of freedom of expression. Such policies can be enforceable through a suit for breach of contract if a school imposes discipline in violation of the expectations of academic freedom that it had set. Faculty handbooks also often include promises of academic freedom; if not, universities will often abide by the principles and recommendations of the American Association of University Professors, although they may not be binding if not incorporated in a handbook or union contract."

Again, your own article clearly states that private universities, unlike your brilliant legal conclusion, are not bound by the first amendment. That should have been during the first semester of your con law class at Harvard (I was in the section with Tribe).

And YOUR article references the same Mass statute, but forgets, like you, that there is no constitutional right not to have your speech abridged in a private setting, such as your house, your private employer's work place, restaurant, a private university, or your home. SO restriction on speech in a private setting like on campus of a private university does not implicate the Mass statute.

And you could have just read the article I posted. Cannot believe this basic legal analysis that I would think would be patent to even lay person escapes your understanding.

Our school was wrong in engaging in selective enforcement of their anti-bullying code that restricts speech (which they could not maintain or enforce, such as they have in the past in situations intended to prohibit hurtful speech relating to sexual orientation or gender identity, if the prohibition set forth in the first amendment applied to Harvard). If the emotionally-charged situation created too dangerous environment to enforce the speech code, just say so. There is suffering on both sides, so I understand why people may lose their mind to their emotions. But wrong is wrong. And hateful speech towards an entire religion or community is wrong. But I am not in the party advocating for firing Gay. I am fervently against outside forces dictating who we hire and who we don't and I don't like the idea of delegating governance of our university to outside parties, but Gay was wrong during her testimony. And it is not fatal to admit mistake like Gay in fact has.

I don't know why you are trying to defend what even the university has stated was wrong.

Elections have consequences. This is who the people of Gaza voted for.

https://www.memri.org/tv/global-ideology-hamas-islam-will-rule-world-annihilate-us-conquer-europe-%E2%80%93-memri-video

calbear93 said:

---

wifeisafurd said:

---

calbear93 said:

---

wifeisafurd said:

---

Unit2Sucks said:

---

wifeisafurd said:

---

tequila4kapp said:

---

wifeisafurd said:

---

Zippergate said:

---

Two thoughts. It doesn't sound like Harvard alum Stefanki will be making her donation this year. The other is I'm glad I'm not the President of a major college these days. There is a move by Harvard alums to dump the current President, as she runs the gauntlet between pissing off students or alums.

I dunno. Harvard could set sane, reasonable standards of conduct and discourse and dismiss any student who refuses to abide by them. Problem solved.

---

This is a generational thing to some degree. Students want safe spaces to not be offended, yet the right to protest and offend. Then there are Harvard alums, who trend towards being ultra establishment, and don't find anything students do or say to be reasonable. And then there is the pesky right of free speech thing in the constitution. All problems once you go down the slippery road of restraining speech with "reasonable standards." What is reasonable then will always depend on context, which is exactly what all 3 Presidents said. .

---

Disagree. Free speech is not absolute. It is never okay to call for the genocide of a race of people. Change the terms just a tiny bit…could there ever be a context in which it would be okay for white people to call for the death of all African Americans? This isn'teven close to being a tough free speech question.

This is such as easy one. "Students are allowed to peacefully protest and express themselves in virtually all circumstances, but it is never okay to call for the murder of others, much less others based on a protected class. That is not protected speech." The fact the 3 presidents couldn't say anything close to that and instead had the "context" answer, which implies that there is some instance where it is okay…well, they deserve every ounce of whatever professional consequences that comes their way.

---

The fact that 3 Presidents of our top Universities, including one who is Jewish, couldn't say that was offensive or wrong is problematic. No problem with that.

But this may come as a shock, but calling for genocide is protected speech, despite your comments to the contrary.

There is no First Amendment exception for hate speech, and clearly that is at odds with your thoughts when you start saying well what happens if you use another group, much less when you go down the path of "protected classes". Students are allowed to have and expouse racist or sexist opinions (interestingly sexual obscene such as pornography is not protected). (This may not be the case for an employee such as a faculty member). The First Amendment fully protects speech that is unpopular, offensive or wrong. It is black letter law that racist, misogynist, homophobic, and [fill in a protected group speech] is protected, and Stefanki didn't give any specifics in the hypothetical that would fit an exception. Now there are exceptions to the protected speech and the codes of conduct, at least at a place like Harvard, make use of these exceptions to try and stop have speech. But when litigated, as discussed below, the broadly drafted college codes are found wanting (see the discussion of harassment below).

I also disagree with your views on this not being a tough free speech question because you can never call for the geocode of people -the law actually says you can. Look there is free speech for hate mongers and those the utter offensive speech, as a general rule. Calling for the death of all police, faculty, schools administrators, the French (been watching some British comedies lately), the Saudi Royals, Jews (even while dressed in a Ku Klux Klan or Nazis dress while walking though a Jewish neighborhood) or screaming death to all black people while in a moving car in Harlem is in fact protected speech, and there is plenty of case law to back that-up (okay, not the French commentary in British comedies). Mere advocacy of lawbreaking, violence or death is in fact protected speech as long as it is not intended to and likely to provoke immediate unlawful action. Brandenburg v. Ohio. Chanting something in a demonstration, or yelling something stupid is protected. You even can give charged speech (including to do away with a race of people) to a restless crowd. Terminiello v. Chicago. Again, Stefanki didn't provide any context how saying the genocide for Jews meets this exception.

There is also no general First Amendment exception for "harassment," and courts have struck down anti-harassment regulations and laws for overbroad language reaching a substantial amount of protected speech. In the educational context, the Supreme Court held in the Davis vs, Monroe County that student-on-student harassment consists only of unwelcome, discriminatory conduct (which may include expression) that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." By definition, this includes only extreme and usually repetitive behavior behavior so serious that it would prevent a reasonable person from receiving his or her education. The college Presidents kept trying to insert language into Stafanki's base hypothetical, to meet the exception for repetitive behavior, because the wanted to say yes, calling for genocide violates our Codes, and got in trouble for it. But absent an exception which could not be deduced from Stafanki's simple question, that is protected speech.

Those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular group of individuals is also an exception..The problem again with Stafanki's hypothetical is she didn't provide context, and made such a general if someone says something inquiry where the SCOTUS, in its wisdom, has said context is required.

Finally, there are fighting words are those that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, with no time to think things over. Basically, you have to have face-to-face physically imposing communications (think a demonstrator that seeks out a counter demonstrator and gets into it) that would obviously provoke an immediate and violent reaction from the average listener. One of the Presidents mentioned that and got shot down by Stefanki.

There are exceptions to the protected speech and the codes of conduct, at least at a place like Harvard, make use of these exceptions. At the risk of being repetitive, the Presidents kept trying to fit Stafanki's base hypothetical within one of the narrow exceptions so they could say yes, it fits our code, but the bottom line is calling for the genocide of people is protected speech, absent there exceptions.

And the other part about the present situation (which didn't hit the media) is that a lot of people at these demonstrations are not students or employees, but outsiders who the University has no jurisdiction over with respect to their codes of conduct.

The Presidents also talked about physical acts in hopes of being able to say yes. The First Amendment does not protect civil disobedience, violent of peaceful, and the School can place time, place and manner restrictions that are issue or group nuetral, and again the Presidents wee trying to button hole Stafanki into providing facts on which President's could act. She didn't rise to the bait.

You might ask why this is allowed in our democracy? Silencing others doesn't often work. Other groups on campus have the same right as you to make their voices heard, even if you don't agree with them. You can always learn from talking and debating with people who disagree with you. The speech codes deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find offensive. The best way to challenge calls for genocide is to challenge those calls, not suppress them. In that regard, the 3 Presidents failed (see my first sentence).

---

Why would you invoke the first amendment unless Harvard's policy is intended to permit all first amendment protected speech?

I might be wrong, but isn't Harvard one of the schools that limits free speech that could be seen as harassing? And that it could even include micro aggressions?

Just spitballing, but if you aren't going to permit all 1A protected speech, why would you permit calls for genocide? That seems like one of the first things you would prohibit.

Saying that calls for genocide are not acceptable speech on a college campus which prohibits other protected speech is pretty easy.

---

I'm admittedly not sure, and in talking with some HLS alum, they are not either. I know as an employer, our employee handbook outlawed all sorts of conduct and speech, but always had an intro, which started except for constitutional or otherwise legally protected communication, you can't do [then came a long list]. Given all the lawyers running around the Harvard campus, it is hard to believe the college's codes of conduct would not carve out legally protected speech and conduct.

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I think you are getting confused by the affirmative action case. Harvard is not a state actor. It is however subject to title vi of the civil rights act, and title vi is treated tantamount to equal protection clause in interpretation. In no actual instance would any legal scholar view Harvard a state actor. You say you have spoken with fellow HLS alums. So have I especially as to the embarrassment for the school. No one even mentions Harvard as a state actor.

---

No I'm not. Harvard, as a private university, is not explicitly regulated by the Fourteenth Amendment. Instead, the case against Harvard relies on Title VI of the Civil Rights Act of 1964, which prohibits any entity receiving federal financial assistance as Harvard does from discriminating on the basis of "race, color, or national origin." Previously, the SCOTUS has held that Title VI's protections match those of the Fourteenth Amendment's Equal Protection Clause, and thus, the analyses are essentially identical. But if you read the CJ's majority opinion, he uses Federal Law to strike down Harvard's admission policies, while he uses the 14th amendment with North Carolina. The difference is Congress could amend the Civil Rights Act to allow Harvard's admission's policies to become valid again.

We will have some fun when I have time to address your couple sentences. Keep becoming more shrill.

wifeisafurd said:

---

calbear93 said:

---

wifeisafurd said:

---

calbear93 said:

---

wifeisafurd said:

---

Unit2Sucks said:

---

wifeisafurd said:

---

tequila4kapp said:

---

wifeisafurd said:

---

Zippergate said:

---

Two thoughts. It doesn't sound like Harvard alum Stefanki will be making her donation this year. The other is I'm glad I'm not the President of a major college these days. There is a move by Harvard alums to dump the current President, as she runs the gauntlet between pissing off students or alums.

I dunno. Harvard could set sane, reasonable standards of conduct and discourse and dismiss any student who refuses to abide by them. Problem solved.

---

This is a generational thing to some degree. Students want safe spaces to not be offended, yet the right to protest and offend. Then there are Harvard alums, who trend towards being ultra establishment, and don't find anything students do or say to be reasonable. And then there is the pesky right of free speech thing in the constitution. All problems once you go down the slippery road of restraining speech with "reasonable standards." What is reasonable then will always depend on context, which is exactly what all 3 Presidents said. .

---

Disagree. Free speech is not absolute. It is never okay to call for the genocide of a race of people. Change the terms just a tiny bit…could there ever be a context in which it would be okay for white people to call for the death of all African Americans? This isn'teven close to being a tough free speech question.

This is such as easy one. "Students are allowed to peacefully protest and express themselves in virtually all circumstances, but it is never okay to call for the murder of others, much less others based on a protected class. That is not protected speech." The fact the 3 presidents couldn't say anything close to that and instead had the "context" answer, which implies that there is some instance where it is okay…well, they deserve every ounce of whatever professional consequences that comes their way.

---

The fact that 3 Presidents of our top Universities, including one who is Jewish, couldn't say that was offensive or wrong is problematic. No problem with that.

But this may come as a shock, but calling for genocide is protected speech, despite your comments to the contrary.

There is no First Amendment exception for hate speech, and clearly that is at odds with your thoughts when you start saying well what happens if you use another group, much less when you go down the path of "protected classes". Students are allowed to have and expouse racist or sexist opinions (interestingly sexual obscene such as pornography is not protected). (This may not be the case for an employee such as a faculty member). The First Amendment fully protects speech that is unpopular, offensive or wrong. It is black letter law that racist, misogynist, homophobic, and [fill in a protected group speech] is protected, and Stefanki didn't give any specifics in the hypothetical that would fit an exception. Now there are exceptions to the protected speech and the codes of conduct, at least at a place like Harvard, make use of these exceptions to try and stop have speech. But when litigated, as discussed below, the broadly drafted college codes are found wanting (see the discussion of harassment below).

I also disagree with your views on this not being a tough free speech question because you can never call for the geocode of people -the law actually says you can. Look there is free speech for hate mongers and those the utter offensive speech, as a general rule. Calling for the death of all police, faculty, schools administrators, the French (been watching some British comedies lately), the Saudi Royals, Jews (even while dressed in a Ku Klux Klan or Nazis dress while walking though a Jewish neighborhood) or screaming death to all black people while in a moving car in Harlem is in fact protected speech, and there is plenty of case law to back that-up (okay, not the French commentary in British comedies). Mere advocacy of lawbreaking, violence or death is in fact protected speech as long as it is not intended to and likely to provoke immediate unlawful action. Brandenburg v. Ohio. Chanting something in a demonstration, or yelling something stupid is protected. You even can give charged speech (including to do away with a race of people) to a restless crowd. Terminiello v. Chicago. Again, Stefanki didn't provide any context how saying the genocide for Jews meets this exception.

There is also no general First Amendment exception for "harassment," and courts have struck down anti-harassment regulations and laws for overbroad language reaching a substantial amount of protected speech. In the educational context, the Supreme Court held in the Davis vs, Monroe County that student-on-student harassment consists only of unwelcome, discriminatory conduct (which may include expression) that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." By definition, this includes only extreme and usually repetitive behavior behavior so serious that it would prevent a reasonable person from receiving his or her education. The college Presidents kept trying to insert language into Stafanki's base hypothetical, to meet the exception for repetitive behavior, because the wanted to say yes, calling for genocide violates our Codes, and got in trouble for it. But absent an exception which could not be deduced from Stafanki's simple question, that is protected speech.

Those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular group of individuals is also an exception..The problem again with Stafanki's hypothetical is she didn't provide context, and made such a general if someone says something inquiry where the SCOTUS, in its wisdom, has said context is required.

Finally, there are fighting words are those that, by the very act of being spoken, tend to incite the individual to whom they are addressed to respond violently and to do so immediately, with no time to think things over. Basically, you have to have face-to-face physically imposing communications (think a demonstrator that seeks out a counter demonstrator and gets into it) that would obviously provoke an immediate and violent reaction from the average listener. One of the Presidents mentioned that and got shot down by Stefanki.

There are exceptions to the protected speech and the codes of conduct, at least at a place like Harvard, make use of these exceptions. At the risk of being repetitive, the Presidents kept trying to fit Stafanki's base hypothetical within one of the narrow exceptions so they could say yes, it fits our code, but the bottom line is calling for the genocide of people is protected speech, absent there exceptions.

And the other part about the present situation (which didn't hit the media) is that a lot of people at these demonstrations are not students or employees, but outsiders who the University has no jurisdiction over with respect to their codes of conduct.

The Presidents also talked about physical acts in hopes of being able to say yes. The First Amendment does not protect civil disobedience, violent of peaceful, and the School can place time, place and manner restrictions that are issue or group nuetral, and again the Presidents wee trying to button hole Stafanki into providing facts on which President's could act. She didn't rise to the bait.

You might ask why this is allowed in our democracy? Silencing others doesn't often work. Other groups on campus have the same right as you to make their voices heard, even if you don't agree with them. You can always learn from talking and debating with people who disagree with you. The speech codes deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find offensive. The best way to challenge calls for genocide is to challenge those calls, not suppress them. In that regard, the 3 Presidents failed (see my first sentence).

---

Why would you invoke the first amendment unless Harvard's policy is intended to permit all first amendment protected speech?

I might be wrong, but isn't Harvard one of the schools that limits free speech that could be seen as harassing? And that it could even include micro aggressions?

Just spitballing, but if you aren't going to permit all 1A protected speech, why would you permit calls for genocide? That seems like one of the first things you would prohibit.

Saying that calls for genocide are not acceptable speech on a college campus which prohibits other protected speech is pretty easy.

---

I'm admittedly not sure, and in talking with some HLS alum, they are not either. I know as an employer, our employee handbook outlawed all sorts of conduct and speech, but always had an intro, which started except for constitutional or otherwise legally protected communication, you can't do [then came a long list]. Given all the lawyers running around the Harvard campus, it is hard to believe the college's codes of conduct would not carve out legally protected speech and conduct.

---

I think we need to make sure we are not conflating issues.

Unless we view Harvard as a state actor, how does the first amendment apply to Harvard? Harvard can restrict speech as a private organization, could it not? Private employers restrict speech all the time. Heck, even UC Berkeley, which is a state actor, restricts speech that may offend certain people all the time. It's that they pick and choose as always who they want to protect and who they don't. It's about politics and picking who they like and who they don't. It's rarely about principle of the underlying right.

Also, even assuming that for whatever reason, Harvard is viewed as a state actor and therefor bound by the first amendment, couldn't we make the argument that there is compelling state interest that is narrowly tailored to prohibiting speech that makes members of the of the community in danger of physical violence?

---

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus.

---

I think you are getting confused by the affirmative action case. Harvard is not a state actor. It is however subject to title vi of the civil rights act, and title vi is treated tantamount to equal protection clause in interpretation. In no actual instance would any legal scholar view Harvard a state actor. You say you have spoken with fellow HLS alums. So have I especially as to the embarrassment for the school. No one even mentions Harvard as a state actor.

---

No I'm not. Harvard, as a private university, is not explicitly regulated by the Fourteenth Amendment. Instead, the case against Harvard relies on Title VI of the Civil Rights Act of 1964, which prohibits any entity receiving federal financial assistance as Harvard does from discriminating on the basis of "race, color, or national origin." Previously, the SCOTUS has held that Title VI's protections match those of the Fourteenth Amendment's Equal Protection Clause, and thus, the analyses are essentially identical. But if you read the CJ's majority opinion, he uses Federal Law to strike down Harvard's admission policies, while he uses the 14th amendment with North Carolina. The difference is Congress could amend the Civil Rights Act to allow Harvard's admission's policies to become valid again.

We will have some fun when I have time to address your couple sentences. Keep becoming more shrill.

---

What?! Talk about backtracking. I tried to give you some latitude and remind you that Harvard is not a state actor and therefore, the Harvard affirmative action case, unlike the UNC case, was brought under Title VI (which applies to all private and public entities that accept federal funding) because the Fourteenth amendment and, correspondingly, the First amendment, does not apply to a private university like Harvard since it is not a STATE ACTOR! You came back and said that Harvard is, in fact, a state actor and therefore must abide by the restrictions in the first amendment.

Now you repeat what I stated and contradict yourself and pretend you are not confused? I will requote your post that is in this thread.


"wifeisafurd said:

Several problems:

1) Harvard is recognized as a state actor by the courts
2) Harvard must provide first amendment rights by state law
3) Harvard holds itself out for academic freedom and contractually allows its employees to exercise 1st amendment rights
4) The physical violence part already is a SCOTUS made exception, which is why the Presidents started talking about context. You really just can't say protester chanting is going to cause violence. You need imminent risk of violence, and given the overall lack thereof, I think that is a leap the courts will be unwilling to make. See my several posts above.

Otherwise, I thought it was a great post (having fun with you).

BTW, it looks like the bueracracy at Harvard is supporting the President, so we get to see who wields more power, alums and pols or the campus."

And then you are the one who started getting snide by stating my claim that Harvard is not a state actor was a "great post (having fun with you)" .

You are confused about basics of constitutional law that should have been taught during your first semester of constitutional law.

It's right there in this specific thread that you quoted. Just drop it. I would rather not be further shocked by how little a fellow lawyer understands the basics of constitution.

Kudos to these Biden administration staff members, who are risking their careers to stop the mass murders in Gaza:

🇺🇸🇮🇱🇵🇸🚨‼️ “In an unprecedented event, Biden staffers organized a vigil outside the White House calling on Biden to call for a ceasefire.” pic.twitter.com/7aFUHkLbCI

— Lord Bebo (@MyLordBebo) December 14, 2023

Cal88 said:

---

The main problem here is that both U2S and Stefanik are conflating protest slogans against the mass murder of Palestinians in Gaza with calls for Jewish genocide. It is a rhetorical sleight of hand that is meant to squash on-campus protests.

---

From a pro-Israel Jew

Jewish students are not in danger of anything more than being made aware of the gross opinions of their peers and cast out of the social circles of those who hate them. If our ancestors could see us complaining about this as being "unsafe," they would laugh until they exploded.

— Batya Ungar-Sargon (@bungarsargon) December 13, 2023

Genocide Joe said:

---

Cal88 said:

---

The main problem here is that both U2S and Stefanik are conflating protest slogans against the mass murder of Palestinians in Gaza with calls for Jewish genocide. It is a rhetorical sleight of hand that is meant to squash on-campus protests.

---

From a pro-Israel Jew

Jewish students are not in danger of anything more than being made aware of the gross opinions of their peers and cast out of the social circles of those who hate them. If our ancestors could see us complaining about this as being "unsafe," they would laugh until they exploded.

— Batya Ungar-Sargon (@bungarsargon) December 13, 2023

---

Is this now the standard for what speech is permitted and not permitted without threat of being shut down on campus? I am sure this is news to some far right speakers. The left has insisted on shutting down speech they do not like. Now the goal post is moving?

I am not saying this about you, but selective enforcement of speech code looks like discrimination against certain groups because that's what it is. Either have truly open expression environment on campus or don't be shocked by push back when people question why the Jewish population is less deserving of protection, especially by those who use terms relating to elimination of Israel, when the school gets worked up over pronouns.

Cal88 said:

---

Just how bad is Gaza? A study just concluded the "civilian proportion of deaths is HIGHER THAN THAT IN ALL WORLD CONFLICTS IN 20TH CENTURY"

And that's 20TH CENTURY, you know, the one with both world wars.

The horror we're seeing is truly unprecedented.https://t.co/ExykIwJbnN

— Arnaud Bertrand (@RnaudBertrand) December 9, 2023

---

40/60% ratio of Hamas to civilian kill ratio per the article. Wasn't the October 7 Hamas attack 100% civilian?

If Hamas had the means and methods to conduct "successful" attacks, wouldn't their indiscriminate rocket air strikes on Israel result in mostly civilian deaths as well?

Cal88 said:

---

Kudos to these Biden administration staff members, who are risking their careers to stop the mass murders in Gaza:

---

Why is Biden's staff dressed like Antifa?

That's a vile thing for you to say considering how many hostages Hamas has killed. Sahar Baruch 25 yo, Ofir Tzarfati, Guy Iloiuz, eliayhu margalit 75yo, Ofra Kidar 70yo, Inbar Haiman 27yo. The gulags offered better treatment than Hamas.

I collected some of the testimony from hostages, their families and doctors about the physical and psychological torture endured by those held hostage by Hamas, including beatings, malnutrition, solitary confinement, sensory deprivation and more https://t.co/V6UKMIRWFd

— Lahav Harkov 🎗️ (@LahavHarkov) December 4, 2023

CaliforniaEternal said:

---

That's a vile thing for you to say considering how many hostages Hamas has killed. Sahar Baruch 25 yo, Ofir Tzarfati, Guy Iloiuz, eliayhu margalit 75yo, Ofra Kidar 70yo, Inbar Haiman 27yo. The gulags offered better treatment than Hamas.

I collected some of the testimony from hostages, their families and doctors about the physical and psychological torture endured by those held hostage by Hamas, including beatings, malnutrition, solitary confinement, sensory deprivation and more https://t.co/V6UKMIRWFd

— Lahav Harkov 🎗️ (@LahavHarkov) December 4, 2023

---

Israel has killed more Israeli hostages than Hamas could ever possibly hope to.

Mearsheimer always spot on in his analyses, takes on Gaza:

CaliforniaEternal said:

---

That's a vile thing for you to say considering how many hostages Hamas has killed. Sahar Baruch 25 yo, Ofir Tzarfati, Guy Iloiuz, eliayhu margalit 75yo, Ofra Kidar 70yo, Inbar Haiman 27yo. The gulags offered better treatment than Hamas.

I collected some of the testimony from hostages, their families and doctors about the physical and psychological torture endured by those held hostage by Hamas, including beatings, malnutrition, solitary confinement, sensory deprivation and more https://t.co/V6UKMIRWFd

— Lahav Harkov 🎗️ (@LahavHarkov) December 4, 2023

---

Speaking of vile things.

What has any obscure college student said on any American college campus that's worse than this?https://t.co/vqRtnPxcHt pic.twitter.com/TjVcNBN6rf

— Glenn Greenwald (@ggreenwald) December 17, 2023

And the double standard on speech issues and bigotry accusations here is too glaring to even require explanation:https://t.co/3ofYLgoiBm

— Glenn Greenwald (@ggreenwald) December 17, 2023

Quick: Focus on what some Penn undergraduate student said, or some obscure street protester, so that nobody thinks about what is being said by high level officials and media figures in the foreign country whose war Biden is funding:https://t.co/TzvDmLAU5o

— Glenn Greenwald (@ggreenwald) December 17, 2023

Here’s what’s wild: the Israelis have never offered the Palestinians a state, ever. That’s a fact. But if you say that here in the U.S. you sound like a madman, because the line here is that they kept turning down great offers. Now finally this extreme right wing govt in Israel…

— Ryan Grim (@ryangrim) December 16, 2023