When They Yelled “Fire!” in the Crowded Theater of Free Speech
As I watched three indisputably intelligent women college presidents looking awfully dense struggling to answer Congresswoman Elise Stefanik’s questions about their elite universities’ codes of conduct with respect to antisemitic speech last week, I saw about 50 years of my own free-speech thinking flash across my mind.
As a graduate student in journalism at Temple University in Philadelphia in 1977, I was assigned with a couple of classmates to organize a writing contest for high school students who were asked to write essays on one of several controversial current topics. The group I led had to investigate the planned Nazi march in Skokie, Illinois — home to a large Jewish population that included many Holocaust survivors.
After a group discussion laying out the facts of the issue, I instructed the students to write a persuasive argument for whether the march should be allowed on the basis of freedom of speech, or banned because of its insensitivity to the pain it would cause the Jewish community and potential to erupt in violence.
As it turned out, there were enough injunctions against the Skokie march, followed by appeals and countermoves, that the case went all the way to the Supreme Court. There were debates about whether to allow the march and associated “speech,” but to prohibit the display of swastikas and other visible symbols of hate.
In the end, the Nazi group was allowed to have its march in Skokie, but organizers had decided by then to move it to Chicago, where it was held amid an overwhelming police presence and went off without a hitch.
Sticks and Stones Will Break My Bones…
At that time, I was a freedom-of-speech absolutist, like the Jewish ACLU lawyer, David Goldberger, who represented the Nazi group in the Skokie case. I stood by the famous quote one of our college professors told us was coined by Voltaire: “I disagree with what you say, but I will defend to the death your right to say it.”
We were also taught that there are limits to free speech. And the phrase that most often defined the red line was attributed to Supreme Court Justice Oliver Wendell Holmes Jr. In regard to a free speech case in 1919, he famously proclaimed, “You can’t yell ‘fire!’ in a crowded theater.” Or at least that’s he way it’s often quoted. He actually said “You can’t ‘falsely’ yell file in a crowded theater.’”
The very reasonable basis for this limitation, and later revisions of free speech boundaries, was that speech could be restricted if it posed the likelihood to incite imminent lawless action, like a stampede, riot or fighting.
“Fine People… On Both Sides”
In August 2017, in Charlottesville, Virginia, a group of white supremacists including neo-Confederates, neo-Nazis and Klansmen, organized a Unite the Right rally. They marched through the community brandishing racist and antisemitic symbols and repeating the phrase “Jews will not replace us!” The march proceeded under the protection of free speech rights, but unlike such events in pre-social-media times, this one was organized, communicated and massively promoted digitally.
A counter-protest ensued, and in the melee that resulted, neo-Nazi James Field Jr. drove his car into the crowd, killing a 32-year-old woman named Heather Heyer and injuring dozens of others. The white nationalist group that organized the rally was later found liable for engaging in a conspiracy leading to the violent demonstration and the plaintiffs were awarded more than $25 million in damages.
The year after the Unite the Right rally, Robert Bowers, 50, incited to violent hatred of Jews by continuous exposure to white supremacist propaganda, walked into the Tree of Life Synagogue in Pittsburgh, killing 11 congregants, critically wounding two others and injuring five responding police officers.
Nearly five decades have passed between my graduate school essay competition analysis of the planned Nazi march in Skokie and last week’s congressional hearing on whether university administrations currently allow student marchers to call for the genocide of Jews on their campuses. And three massively important things have occurred in that time.
Three Tectonic Shifts
First, the internet has turned the bullhorn of hate communication into a booming, global loudspeaker. And the crowded theater is now our entire country.
Second, the antisemitism that was unpleasant, uncomfortable and disturbing throughout my childhood, adolescence and young adulthood is now more widespread and dangerous. CNN has reported that antisemitic incidents in the U.S. are at the highest level recorded since the ’70s. Incidents including assault, vandalism and harassment have nearly tripled in the last six years, CNN said, citing a report by the Anti-Defamation League.
And third, starting in the late 1990s but advancing in earnest since the start of the 2000s, the so-called “woke” agenda has made colleges and universities deserts where free speech goes to die. From “microaggressions” to “trigger warnings” and “safe places,” from canceling guest speakers with conservative ideas to cautioning students and faculty against “misgendering” people who don’t conform to “cis-normative” identities, college administrators have perpetrated what authors Greg Lukianoff and Jonathan Haidt call “The Coddling of the American Mind.” Their 2018 book of that title makes the case that in their well-intended effort to increase the emotional well-being of students by limiting their exposure to speech and thoughts that might be disturbing, they’ve compromised education and hampered mental health.
The three college presidents who clung to “context” and other qualifiers to explain why calling for the genocide of Jews was not, in itself, prohibited by their codes of conduct are poster children for why so many reasonable Americans have turned their backs on progressive liberal overreach. They would never condone — regardless of context — the genocide of Black people, Asian people, Muslim people, trans people, disabled people. Comedian Amy Schumer parodied the situation in this spot-on clip.
Yes, you may say, but this is about the Israel-Hamas war. It’s complicated. Israel’s goverment fomented righteous anger on the part of Palestinians, their barbaric Hamas leadership committed a crime against humanity in Israel On Oct. 7, and Israel is striking back in a way that horrifies any sentient being. Hamas has to go, but at what human cost?
This situation is doing more to force people into taking sides than any I can remember. But now we’re talking about free speech, and how to enforce it at this perilous time in a way that can be satisfactorily explained.
If I had been communications counselor to any of the three university presidents, I would have told them my own cardinal rule: NEVER DISPUTE THE OBVIOUS! Whatever the lawyers tell you, you’re not going to get out of this hearing with your job intact if you recite lawyerly answers.
The simple answer to the yes or no question of whether your code of conduct prohibits calling for the genocide of Jews is, “Today the answer is regrettably yes, and that is a mistake. Such statements are abhorrent, reprehensible and morally wrong. Consequently, as the leader of (Harvard/MIT/the University of Pennsylvania), I hereby announce plans to change our policy. This effort will commence as soon as this hearing concludes.” (This is very close to what Penn president Liz McGill said in her public statement the day after the hearing, but by then it was too late, and she was forced to resign.)
I’d advise that we contact the two other schools, and maybe more, to garner support for this effort and let the world know we’re neither tone deaf nor anti any group of people. If we’re going to bend over backwards to protect everyone else’s precious feelings, that needs to apply across the board. And in this case, the situation has already gone beyond hurt feelings. If other universities wanted to jump on board and do it together, fine, and if not, I’d advise that we go it alone.
There are no words to make those universities’ current policies more palatable and less plain stupid. Another cardinal rule I learned in my career in communications is that sometimes, you can’t find better words to explain a bad policy. Sometimes, you just need a better policy.
