Explaining the First Amendment to University Presidents

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By Nathan Lewin

In the wake of the astounding testimony before Congress by the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology, three important questions must be asked:

  1. Why are the presidents of leading American universities abysmally ignorant of Supreme Court rulings on the limits of protected speech under the First Amendment?

The presidents claimed in their testimony that anti-Israel and antisemitic “protesters” on their campuses are only exercising their constitutionally protected right to free speech when they call for an “intifada” and chant Hamas’ battle cry “from the river to the sea, Palestine will be free” — both clear calls for violence against Israelis and Jews.

Harvard’s president Claudine Gay repeatedly declared that her university will act only “when speech crosses into conduct.” She might be surprised to learn that not a single Supreme Court justice agrees with her.

Indeed, it is unlikely that the three presidents have bothered to read the most recent definition of First Amendment speech guarantees as expressed by all nine Supreme Court Justices, albeit in various opinions. Not one of the justices believes that threats and incitement have blanket constitutional protection and cannot be punished unless they “cross into conduct.”

On June 27, the Supreme Court decided a case titled Counterman v. Colorado, which dealt with harassment on the social media site Facebook. The case generated much discussion precisely because it dealt with the issue of what limits can be placed on speech protections. All of the justices agreed that the Bill of Rights does not guarantee any right to send threats over social media. Nor did they hold that the First Amendment entitles a speaker to say anything so long as it does not “cross into conduct.” The justices differed only over how relevant the speaker’s intention might be to the question of criminal penalties.

A majority of the Court, speaking through Justice Elena Kagan, said that expressing a threat would be a crime if the speaker uttered it with “reckless disregard” for how it would be understood by a listener. Four justices differed only in part. All the justices agreed that freedom of speech does not protect a speaker who makes a threat with reckless disregard for the listener’s fear of violence.

The campus protesters in question are obviously guilty of “reckless disregard” for the fears of their Jewish fellow students. Under the most recent Supreme Court rulings, they can be charged with crimes and punished accordingly. That the presidents of Harvard, MIT and Penn are ignorant of this is shocking.

  1. Why are major donors to these universities only terminating future grants rather than demanding that billions of dollars in past donations be refunded?

Benefactors who have given huge donations to Harvard and other universities with enormous endowments have announced publicly that they will not continue to contribute to these institutions because they promote and fail to control antisemitism.

It is possible that this may influence the public declarations of university administrators who are unhappy that the flow of funds has been interrupted. But given the vast resources of these institutions and the contributions likely to come from antisemitic and anti-Israel sources, it will only have a modest impact.

A far more powerful response would be for major donors to file lawsuits seeking to recover the billions of dollars they have donated in the past. They could do so on the grounds that these donations were secured by false representations that claimed the universities were providing proper meaningful education to their students.

For example, Harvard’s original charter of 1650 stated that its students will be taught “knowledge and godlynes.” Contributors have now discovered that Harvard does not abide by this charter. Instead, it egregiously violates it by nurturing hate and violence against Jews. As such, donors are legally entitled to recover the funds they were convinced by Harvard’s false representations to provide.

  1. Why are no federal grand juries investigating the probable violations of American anti-terrorist laws committed by the organizers of and participants in pro-Hamas public protests?

In 1996, Congress enacted the “Antiterrorism and Effective Death Penalty Act” (18 U.S.C. 2339B), which makes it a criminal offense to provide “material support to foreign terrorist organizations.” Violating this law can be punished with a long prison sentence.

The Supreme Court, with Chief Justice John Roberts writing for a six-person majority, upheld the law in 2010 and rejected claims that its restriction of “material support” for terrorism violated First Amendment rights of free speech and free association (Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)).

Advocating for a terrorist organization and supporting its activities, even if they constitute otherwise lawful protest, violates this provision of the Federal Criminal Code. Organized protests supporting Hamas accompanied by costly printed signs, customized uniforms and caps, and Palestinian flags, assuredly qualify as “material support” for Hamas.

Why has the Department of Justice under Attorney General Merrick Garland, a descendant of Holocaust survivors, failed to initiate a federal investigation into these probable violations of America’s anti-terrorism laws? Why has no U.S. attorney impaneled a federal grand jury and subpoenaed witnesses?

These are just some of the questions that an American lawyer must ask in these turbulent times.

Nathan Lewin is a Washington, D.C., attorney with a Supreme Court practice who has taught at leading national law schools including Harvard, Columbia, Georgetown and the University of Chicago.

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