By University of California, Irvine Chancellor Howard Gillman and University of California, Berkeley School of Law Dean Erwin Chemerinsky:
Above all, the First Amendment means that all ideas — even deeply offensive ones — can be expressed on a college campus. There are certain views that we all hope never would be voiced, but the central premise of the First Amendment is that it is worse to give the government the power to outlaw particular ideas than to allow them to be voiced. As Chief Justice John Roberts declared, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
This issue came to national attention last week at a congressional hearing when three presidents of prestigious universities refused to say that they would ban any advocacy for the genocide of Jews on their campus. The problem was that they were asked a deeply emotional question, but they attempted to respond with a nuanced answer that was technically correct on the law but too dispassionate about the traumatic impact of such speech at unversities. The media latched on to a soundbite and presented the presidents as insensitive to hate and antisemitism, even though they had issued many condemnations in other answers.
To be clear, advocacy of genocide against Jews is abhorrent and inconsistent with the values of every institution of higher education we are familiar with in the United States. University leaders must speak with great clarity and force on this basic point. Leaders must not evade the serious challenges associated with the fact that too many faculty and students speak in ways that are truly horrific and frightening to Jewish students. This must be a matter of urgent attention and sustained focus throughout American higher education.
But the details of what exactly this means in terms of what can and can’t be done by a university are more complicated.
To begin with, private universities do not have to comply with the First Amendment, which applies only to government institutions. However, most private universities aspire to comply with the principles of freedom of speech and academic freedom, and the university presidents who testified said that their campus policies were designed to mirror the constitutional obligations imposed on public universities.
This leads to the second incontrovertible point: The First Amendment imposes an absolute bar on what public universities and colleges can do about the isolated and fleeting expression of even abhorrent views by students or faculty.
Read the rest of the article in the San Francisco Chronicle.