Free speech is not so free for Harvard President Claudine Gay

Get the Point!

Dr. Claudine Gay, the first Black woman to serve as president of Harvard University, will learn later today whether she will remain in her position at the helm of one of the most prestigious centers for learning in America.

 Dr. Claudine Gay

Last week, Dr. Gay joined her presidential colleagues from the equally prestigious University of Pennsylvania and MIT at a Congressional Hearing that delved into charges of anti-Semitism on college campuses. As the media, including this blog, have reported since the October 7th Hamas attack in Israel that’s led to two months of deadly fighting in the region—and two months of bitter rhetorical fighting in the halls of academia and on social media—the way these issues have been addressed are fraught with charges of religious, cultural, racial, and even gender bias. 

When asked last week whether calls for the genocide of Jewish people on campus amounted to bullying or harassment of Jewish students, Dr. Gay (and her colleagues) gave the answer that every first year law student learns on the VERY first day of orientation: "It depends!" While the specific language varied between the presidents, the crux of their responses was that "it depends on the context" of the offending statement.

Now, just about every jurist, law professor, lawyer, and law student will tell you that theirs was a logical response to a critically challenging question based upon the First Amendment of the U.S. Constitution. The very amendment, I remind, that was designed to prevent government actors from usurping an individual's right to express themselves on any subject matter under the heavens.

The very fact that such was the FIRST issue that the Founding Fathers regulated by law was due to their collective memories that while under the rule of Great Britain's King George III, that each pamphlet, letter, or speech that they drafted or exclaimed in opposition to the British Crown made them outlaws. 

Thus, in the over two centuries since the Constitution was ratified, federal courts have litigated time and again what types of speech and, read this carefully, what type of conduct, can be regulated by government actors. Meaning, all sorts of hateful speech may be offensive to some or others and yet, it still could be protected free speech—but that determination "depends" on the “context,” just as Dr. Gay and the other madame presidents testified last week!

I despise the Ku Klux Klan and detest all that it stands for, but if Klansmen obtain a permit to march in the public square, so long as their march (conduct) is peaceful, they arguably have a First Amendment right to express their Bullsh*t the same as any other Americans…

What "depends" often boils down to whether the hateful speech places other individuals, and in this matter Jewish students and their supporters, in danger of harm. To that end, I believe that the presidents pre-determined "it depends on the context" answers that very likely were drafted by the respective universities general counsels, should have added, "it depends on whether the statements place students, faculty, or staff in danger of physical or mental harm." Such an answer would have further defined "context" and, moving forward, unequivocally provide the universities disciplinary committees remedies ranging from expulsion—to referrals to law enforcement—if the context leads to reasonable suspicion that bodily harm (physical or mental) or death could ensue. 

The problem for Dr. Gay et al., including the University of Pennsylvania's now former President Liz McGill (who resigned in the wake of the controversy), is that far too many people in the court of public opinion immediately jumped to the conclusion that these distinguished women were anti-Semites who oppose Israel's right to self defense. Such conclusions are utterly ridiculous as none of these women made ANY comments remotely akin to this train of thought, but the state of modern public discourse regrettably finds far too many people gathering the barest facts before running off at the keyboard with their factually limited opinions. 

The real truth is that we all must remember that hate speech is hate speech, and I pride myself in being intellectually honest enough to condemn talk of genocide in ALL of its forms, even if the declarant has a constitutional right to his/her hateful views.

Further, as I have stated many times in the past, while the creation of modern Israel after World War II was arguably the last act of Western colonialism and fraught with all sorts of racial and ethnic bigotry against Palestinians, I realize that the hands of time cannot be turned back, thus, my continuing push for a two state solution where Israel and Palestine exist as autonomous states with sovereign rights. I also realize that while the current Congressional hearings are focusing on hate speech that threatens genocide against Jews, that the same political leaders from both parties who are absolutely right to protect the safety of Jewish students and supporters, are eerily silent about acts of genocide currently being perpetrated by an American backed Israeli military that has been harshly criticized by the United Nations and humanitarian groups that are unafraid to call what's happening in Gaza precisely what it is—genocide! That, and the fact that across America, Palestinian Americans and immigrants are at risk of harm from those who hate them based upon their ethnicities and religious beliefs—such renders the whole Congressional hearing on this subject one sided and suspect.

As for Dr. Gay, it is not lost upon me that there are some who are using her lawyerly "it depends" answer as a way to oust her from Harvard's presidency not so much due to her testimony, but due to the fact that there are many bigots across the political ideological divide who cannot stand the thought of a woman, let alone a Black woman, leading an institution that has been THE institution for white American leadership—good, bad, and ugly—since the 17th Century. Anyone who can't see this point is just as blind as those who wish to pretend as if Dr. Gay and her prestigious presidential colleagues—also women—were spewing vile Nazi-ish rhetoric last week; indeed, even the mere suggestion is absurd!

But as we await to learn Dr. Gay's fate, I do take solace in knowing that she has received broad support, including (per the NY Times) letters from noted "historian Dr. Henry Louis Gates Jr., Laurence Tribe, a constitutional law scholar; Randall Kennedy, a professor of law; Annette Gordon-Reed, a historian of early America; William Julius Wilson, a sociologist; and Jason Furman, an economist and a former adviser to former President Barack Obama." The Times article added: "The group of professors supporting Dr. Gay was diverse. In addition to Black faculty, it included Jewish professors and Arab American and Muslim faculty members, and spanned a broad range of schools and disciplines. Many of her supporters have expressed dismay that the pressure building on her to resign was part of a coordinated effort — led mostly but not exclusively by conservatives — to attack elite higher education institutions like Harvard."

Indeed! The Hobbservation Point's prayers are with Dr. Gay as she learns her fate today—and always!