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When we talk about what can sort of broadly be called cancel culture on campus—and I don’t necessarily like that term, but I think everyone knows what I mean when I say it, so I’m gonna say it—when we think about cancel culture on campus, we often think about the very loud, but ultimately I think pretty small minority of people who genuinely believe that other people deserve to be ruined for the things that they believe and the things that they say. Those people do exist. I deal with them. I interact with them. But I think that cancel culture has flourished because of the much larger group of people who are too afraid for their own careers and reputations to speak out against what they know to be wrong. So I’ll share one example with you, but there are many more.

In July of 2020, a group of Princeton faculty, staff and graduate students signed a petition demanding that the administration at Princeton do more to address racism on campus. One of the demands in that petition was the creation of a committee that would oversee the investigation and discipline of “racist behaviors, incidents, research and publication” on the part of faculty. Some faculty at Princeton immediately recognized that the demand to root out racist research and publication would severely threaten academic freedom. One of those faculty members was a then-classics professor at Princeton named Joshua Katz who in July of 2020 wrote an editorial in Quillette denouncing this proposal.^[1]

Then, as you can imagine, people began denouncing him, including Princeton itself. First he was denounced for his opposition to this proposal and then later he was the subject of a witch hunt that ultimately ended in him leaving Princeton, but that’s not really what I’m gonna talk about. What I want to talk about is how other people responded to the initial controversy over his Quillette article.

When he started being denounced for the position he took in Quillette, a Princeton alum circulated an open letter in support of Professor Katz and asked other alumni to sign on. The responses there were telling. This wasn’t a petition that asked anyone to actually agree with what he had said in Quillette. It was just something affirming his right to free speech and supporting his right to free speech. Other alums were asked to sign on, and their responses were very, very telling. One person wrote that, you know, I could sign this letter but said that their employer would probably fire them and that they couldn’t afford to take that risk. Another person said “as a junior tenure track professor I sympathize with your message but I cannot afford the luxury to support it openly.” And so on. Because I was representing Professor Katz at the time, I was in close touch with this alum who was able to share a lot of these messages with me and these messages that I’ve shared with you were actually things I wrote in an article about this in the National Review,^[2] about this phenomenon and some of these people did agree to have their comments shared anonymously in a piece about why people are so afraid to speak up. That’s where these comments come from.

I represent a lot of clients in these situations and I hear the same thing over and over again: the denouncements, when they come, are invariably public, but the support is private. Few people have the courage to speak out. It seems harsh in the moment to fault an individual person who is afraid of losing the ability to support their family. But the collective failure of courage here is what allows this environment to flourish in the first place. If we really want to fight this problem, we can’t do it without taking personal risks.

There’s so much happening with free speech on campus that it’s hard to choose just one or two things to talk about in a brief presentation, but since everybody seems to be thinking and talking about the pro-Palestinian protests and encampments that have taken over so many university campuses, I thought that would be a good place to start, because there’s a lot of interesting pieces to unpack there. As both a free speech attorney and an orthodox Jew, I’ve been getting a lot of questions about this topic in both my personal and my professional life. There’s a lot going on here in terms of what kinds of speech are protected, what kinds of speech aren’t protected, and what kinds of activities aren’t speech at all.

If we back up to the fall shortly after October 7th, what we saw on campus were not these encampments that are popping up now, but pro-Palestinian rallies and protests. These protests included a lot of speech that many Jews on campus found deeply offensive and even frightening. People started asking me a lot of questions about it. I got a lot of questions like, you know, people are chanting “from the river to the sea” or “there is only one solution intifada revolution.” Can people really say that? I mean that seems like they’re calling for the murder of Jews. Is that protected or is it a threat of violence?

The oversimplified answer to that question is, chants like that are constitutionally protected speech. I say oversimplified because there are a lot of different things that might affect that, including the fact that you know at private universities the issue is not the First Amendment in the Constitution but rather the university’s own promises. But the oversimplified answer that things like attending a rally and chanting “from the river to the sea” or “there is only one solution intifada revolution,” those are protected speech. They may be scary, they may be hurtful to people, but they are not true threats of immediate lawless action, and for the most part, when they take place in the context of a campus protest, they’re not aimed at inciting a mob to immediate unlawful action.

Now, in response to this, what a lot of people would say is, well, but isn’t it hate speech? The answer is, I mean, arguably, yes, I would certainly say that it’s hate speech. But a very common misconception is there is no hate speech exception to the First Amendment. A lot of so-called hate speech is also protected speech. You can say things that are hateful or offensive or deeply hurtful, as long as you aren’t threatening or inciting violence and as long as your speech doesn’t constitute discriminatory harassment.

What is discriminatory harassment?, you might ask, and that also has a legal definition. Discriminatory harassment occurs when someone’s conduct that’s based on a protected category is so severe or pervasive that it interferes with or limits someone’s ability to participate in or benefit from the school’s opportunities. Hearing something like offensive chants at a rally doesn’t rise to this level. On the other hand, we saw incidents like what happened in the fall at Cooper Union where, you know, you saw Jewish students kind of trapped inside a library while protesters were banging on the doors and windows that almost certainly do rise to that level.

The answer of what the line is between free speech and harassment does depend on the context. I know that was a very controversial phrase in the fall when these [university] presidents testified before Congress, and I think that the people who were so horrified by that testimony, and I was one of them, were reacting to the obvious double standard that these presidents were applying. Because suddenly schools that for years had been censoring and punishing and denouncing offensive speech, were suddenly talking about things like free speech and institutional neutrality, things that those of us in the free speech community had been trying to get them to acknowledge unsuccessfully for decades. To me this was particularly infuriating. I’ve been trying to get schools to acknowledge the importance of free speech for 20 years, and suddenly they discover its value when the speech is about Jews. For me, that’s what was infuriating about those college presidents’ congressional testimony. They took so much heat for saying that whether calls for genocide were protected depends on the context. But actually, they were getting free speech right for the first time in a long time. It does depend on the context. Saying something on a campus green in the middle of the day is different from going into the lobby of Hillel during Shabbat services and saying the same thing.

But these presidents were total hypocrites. We all know that if people on campus had publicly celebrated the death of George Floyd or of Nex Benedict that these same presidents would have been leaping into action and not touting the importance of free speech. So for me, this total hypocrisy, the fact that they never acknowledged that exactly what they were saying on that day was the opposite of what they’d been doing for decades completely undermined the importance of what they were saying about free speech.

Now more recently we have seen pro-Palestinian activism on campus move from protected speech to civil disobedience. But unfortunately, too many of today’s students don’t seem to know the difference between those concepts and they’re important. That’s an important distinction. Because the whole idea of civil disobedience is that the people willing to engage in it are willing to risk legal consequences to make their point. It’s that personal risk that gives civil disobedience its power. But the residents of many of these campus encampments seem to think that just because the message behind their activism may be protected, that their violations of campus policies and even local laws should also be protected. We’ve seen them demanding amnesty from punishment. We’ve seen them demanding that finals be canceled. We’ve seen them demanding food and water. We’ve even seen them calling 911 to demand the right to leave the encampment and change their tampon. In doing so these students miss the entire point of civil disobedience. As one podcaster I listen to recently said it was letter from a Birmingham jail, not letter from a Birmingham Whole Foods. The point of civil disobedience is that you’re willing to risk the consequences.

To be clear, regardless of the message you intend to convey, things like taking over an administration building and violating regulations on overnight camping or obstructing rights of way is not protected speech. Those things are civil disobedience and civil disobedience carries consequences. This controversy actually really brings us back to the theme of courage, because the cowardice of so many university administrators has been on full display throughout this encampment movement, throughout this latest iteration of the pro-Palestinian protest movement, which again is distinct from what we were seeing in the fall, which really were for the most part just campus rallies and protests. You have these administrators at many of these institutions bending over backwards now to appease these protesters for their civil disobedience. In exchange for the dismantling of the encampments, universities have agreed to create new scholarships and teaching positions for Palestinians, to involve student activists in investment decisions. They’ve backtracked on imposing disciplinary action. This kind of appeasement just encourages future activists to engage in similar kinds of disruptive and lawless behavior. In fact, if you look at almost any campus free speech controversy these days, you’ll find administrative hypocrisy and cowardice at the root.

A significant part of my law practice involves helping professors who are facing internal investigations over their classroom speech. Most of these investigations should not be happening at all. For example, one of my clients is being investigated for accidentally misgendering a non-binary student in one of her seminars and then for self-deprecatingly referring to herself as “a walking microaggression” when asking forgiveness for having done so. Another client of mine was investigated for failing to censor himself when reading directly from an essay by black scholar Randall Kennedy that included the N-word. Ironically, the title of the essay he was reading was called, “Is it ever okay to enunciate a slur in the classroom?” Another client was investigated for admitting when asked directly by a student that he believed marriage is between a man and a woman. This climate leaves faculty fearful of teaching openly and honestly, and of meaningfully engaging with students.

A recent survey that FIRE did was actually able to quantify some of what faculty are experiencing on campus now.^[3] Fully 11% of the faculty FIRE surveyed reported actually being disciplined or threatened with discipline because of their teaching. That’s a shocking number. One out of every 10 faculty members has been threatened with or been actually disciplined for their teaching. More than half of faculty, 52%, said they were worried about losing their jobs or reputation because someone would take something they said out of context or misunderstand something. That figure jumped to 72% for conservative faculty.

When I get cases like this involved in classroom teaching, the first thing I often do is to write to the university’s attorney and explain that the university shouldn’t be investigating speech that’s clearly protected either by the First Amendment or by the school’s own policies on free speech and academic freedom. Invariably I get a response that includes a statement like, “Surely you understand that the university has to investigate all student complaints.” No, you actually don’t have to investigate every student complaint. You could actually tell a student that a professor’s teaching is protected by the university’s guarantees of academic freedom and free speech and that you’re not going to investigate. But these institutions are so fearful of running afoul of the activists in their midst that they almost never do this.

Of course, the appeasement never works. It only emboldens those who are demanding the metaphorical heads of everyone who transgresses their their sacred orthodoxies.

The only thing that does work is the thing that so few administrators are willing to do, which is to actually show some backbone in these situations. To illustrate this point, I’m going to tell you about a controversy that you probably never heard about. Back in 2019, some students at the University of the Arts in Philadelphia began demanding that the university fire Camille Paglia for controversial statements she made about #metoo and about transgender issues. If you’re not familiar with Camille Paglia, most of you probably are, she’s a feminist academic who has made waves over the years with her provocative and unexpected criticisms of things that you would expect her to support. After a student protest demanding Paglia’s firing, the university’s president at the time issued a statement to the community over email. He wrote,

“Artists over the centuries have suffered censorship and even persecution for the expression of their beliefs through their work. My answer is simple. Not now, not at UArts.”

And guess what happened next? Nothing. Nothing happened. The president stayed, Camille Paglia stayed, the university is still standing. But sadly, that story has remained my prime example of this phenomenon throughout five years of addressing this topic because it’s so rare to hear such a clear and simple statement of courage from a university administrator.

Controversy and Courage on Campus by Samantha Harris, Esq.

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About Samantha Harris, Esq.

Samantha Harris, Esq., partner at Allen Harris Law, has dedicated her career to protecting free speech and civil liberties. Her advice has guided students, faculty, administrators, and attorneys on issues of free speech and due process on campus for more than 15 years.

After graduating from Princeton University with an undergraduate degree in Politics, she went on to study law at the University of Pennsylvania. Following a federal clerkship and a brief stint as a litigation associate at Pepper Hamilton LLP, she joined the Foundation for Individual Rights in Education. She now lectures regularly about student and faculty rights at campuses and conferences around the country.

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