Reconsidering the First Amendment Fetishism of Non-State Actors: The Case of Hate Speech on Social Media Platforms and at Private Universities. (Speech at Twenty-First Century Schools and Universities)

• Date: 01 July 2024
• Author: Yoshino, Kenji
• Published date: 01 July 2024

Table of Contents
                Introduction
                I. The Congressional Hearing on Antisemitism on College Campuses
                II. The First Amendment's Protection of Calls for Genocide
                III. The First Amendment's Inapplicability to Private Universities
                IV. Reasons to Resist First Amendment Fetishism
                V. Meta's Move Away from First Amendment Fetishism
                 A. A Credible Institution
                 B. A Credible Body of Law
                 C. A Credible Modality of Reasoned Decisionmaking
                VI. Universities, Again
                 A. A Credible Institution
                 B. A Credible Body of Law
                 C. A Credible Modality of Reasoned Decisionmaking
                Conclusion
                

Introduction

Presidents of two of the most prominent universities in the world recently resigned in the space of a month, in part because of how they answered a question about hate speech. The two presidents were Elizabeth Magill of the University of Pennsylvania and Claudine Gay of Harvard University. The forum was a Congressional hearing conducted on December 5, 2023, about antisemitism on college campuses. The question was whether calls for the genocide of Jews violated university speech policies.

Both Magill and Gay said the answer depended on "context." (1) Commentators pilloried both presidents for this "legalistic" response to what might be considered an emotional and moral question. (2) Yet in fairness, the presidents were correct that context would be critical if the speech were analyzed under the Supreme Court's First Amendment jurisprudence. Whether the utterances would fall outside free speech protections because they were "fighting words," "true threats," "incitement," "harassment," or "conduct," for instance, would be a fact-dependent inquiry.

In another sense, however, the presidents may not have been "legalistic" enough, given that most private universities--including Penn and Harvard--are not bound by the First Amendment. Penn and Harvard engage in what might be called "First Amendment fetishism" (3) in that they protect speech beyond what law requires. Their choice to adhere to First Amendment standards is just that: a choice.

Private universities have compelling reasons to choose differently. Many scholars have critiqued how First Amendment case law favors speech over equality, with some noting that the United States is an outlier among peer nations in its protection of hate speech. (4) Even if the Supreme Court's First Amendment jurisprudence was once normatively desirable, the changing speech landscape-including the emergence of social media-may require us to revisit the Court's premises. Moreover, even if the Court's First Amendment jurisprudence has been and continues to be right for public actors, it may be wrong for private ones.

We should ask, then, why most private universities are still captured by First Amendment fetishism. One answer is that the Supreme Court's free speech jurisprudence provides too attractive a package of benefits. I focus on three in particular, with no claim to be exhaustive. First, the Supreme Court is a credible interpretive institution. Second, the Constitution is a credible source of law. Finally, Supreme Court decisions are credible elaborations of that law. Given that universities agonize over making unprincipled decisions in this fiendishly complex space, these benefits are alluring. To entice private universities away from that default, we would need to replicate (at least) these three features.

As recent developments in the private sector have demonstrated, that task is not insuperable. In 2020, the social media company Facebook (now Meta) created its Oversight Board ("OSB"). (5) The OSB is a quasi-judicial body that adjudicates difficult content moderation cases faced by the company. (6) As I am currently a member of the OSB, I underscore at the outset that I rely solely on publicly available information in this analysis. I also stress that my goal is not to defend or critique the workings of the Board.

Rather, I employ this private company's experiment in speech moderation to illuminate analogous experiments private universities could conduct. Facebook self-consciously rejected First Amendment fetishism. It did so by attempting to create a credible interpretive institution (the OSB) that applies a credible body of law (international human rights law) through credible elaborations of that law (public, reasoned opinions).

Returning to the university context, I speculate about the utility of private universities fashioning a body analogous to the OSB. Private universities obviously differ from private social media platforms in many ways. Social media companies are for-profit entities that deal with content on an entirely different scale and have a global footprint. But these differences may simply mean that social media companies were pushed away from First Amendment fetishism more quickly. Private universities may soon find themselves following suit.

Part I outlines the conflict during and after the Congressional hearings over whether universities could punish calls for genocide. Part II demonstrates that, as the university leaders implied, the free speech jurisprudence of the U.S. Constitution generally protects hate speech from punishment by the government. Part III notes, however, that Penn and Harvard cannot reflexively rely on free speech jurisprudence, because they are not bound by it. Part IV argues that private universities should move away from First Amendment fetishism and posits that they refuse to do so because they want to outsource difficult speech moderation issues to the Supreme Court. Part V points out that Meta, as a social media platform, has attempted to address analogous challenges by creating the OSB. Part VI considers the lessons private universities might draw from the experiment of the OSB.

I. The Congressional Hearing on Antisemitism on College Campuses

While Representative Elise Stefanik's statement that it was "the most viewed congressional testimony in the history of the United States Congress" warrants skepticism, it was a hearing that nevertheless riveted the country. (7) Presidents Magill and Gay ignited a firestorm when they--along with Massachusetts Institute of Technology President Sally Kornbluth--testified before the House Committee on Education and the Workforce. (8) Members of the Committee asked a battery of questions about how these three universities were combating antisemitism. Representative Elise Stefanik's exchanges with the Presidents went viral.

STEFANIK: Ms. Magill, at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct, yes, or no?

MAGILL: If the speech turns into conduct, it can be harassment, yes.

STEFANIK: I am asking specifically calling for the genocide of Jews, does that constitute bullying or harassment?

MAGILL: If it is directed and severe or pervasive, it is harassment.

STEFANIK: So the answer is yes?

MAGILL: It is a context-dependent decision, Congresswoman.

STEFANIK: It's a context-dependent decision? That's your testimony today? Calling for the genocide of Jews is dependent upon the context? That is not bullying or harassment? This is the easiest question to answer, yes, Ms. Magill. So is your testimony that you will not answer yes.

MAGILL: If it--if it is--if the speech becomes--

STEFANIK: Yes or no.

MAGILL: If the speech becomes conduct, it can be harassment, yes.

STEFANIK: Conduct meaning committing the act of genocide? The speech is not harassment? This is unacceptable, Ms. Magill. I'm going to give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn's code of conduct when it comes to bullying and harassment, yes or no?

MAGILL: It can be harassment.

STEFANIK: The answer is yes, and Dr. Gay, at Harvard, does calling for the genocide of Jews violate Harvard's rules of bullying and harassment, yes or no?

CLAUDINE GAY: It can be, depending on the context.

STEFANIK: What's the context?

GAY: Targeted as an individual, targeted at an individual.

STEFANIK: It's targeted at Jewish students, Jewish individuals. Do you understand your testimony is dehumanizing them? Do you understand that dehumanization is part of antisemitism?

I will ask you one more time. Does calling for the genocide of Jews violate Harvard's rules of bullying and harassment, yes, or no?

GAY: Antisemitic rhetoric when it crosses into conduct--

STEFANIK: And is it antisemitic rhetoric--

GAY: Antisemitic rhetoric, when it crosses into conduct, it amounts to bullying, harassment, intimidation, that is actionable conduct and we do take action.

STEFANIK: So the answer is yes, that calling for the genocide of Jews violates Harvard's code of conduct; correct?

GAY: Again, it depends on the context.

STEFANIK: It does not depend on the context. The answer is yes, and this is why you should resign. These are unacceptable answers across the board. (9)

The backlash to Magill and Gay's testimony was blistering. The Committee stated it would take "additional action" to hold the three universities accountable by investigating "their seemingly deplorable record." (10) Republican Presidential hopeful Nikki Haley posted a video of the exchange on X, saying such comments must "end or we'll pull their tax-exempt status." (11) Pennsylvania's Democratic governor, Josh Shapiro, told reporters that Magill's response was "an unacceptable statement." (12)

The day after the hearing, Magill posted a video regarding the responses she had given to Stefanik:

 There was a moment during yesterday's congressional hearing on
                 antisemitism when I was asked if a call for the genocide of Jewish
                 people on our campus would violate our policies. In that moment, I
                 was focused on our university's longstanding policies aligned with
                 the U.S. Constitution, which say that speech alone is not
                 punishable. I was not focused on--but I should have been--the
                 irrefutable fact that a call for genocide of Jewish people is a
                 call for some of the most terrible violence human beings can
                 perpetrate. It's evil--plain and simple
                 I

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