The Hypocrisy Underlying the Campus-Speech Controversy
Conservative lawmakers can’t seem to decide how they feel about government influencing private institutions’ speech policies.
Earlier this month, Congress held a dramatic hearing with the heads of three private corporations that manage important forums for public debate. Members of Congress criticized these leaders in the strongest possible terms for their alleged failure to stem harmful speech on their property. The White House weighed in the next day to denounce the leaders’ equivocal answers, and both the Biden administration and Congress have announced multiple investigations into whether these and other institutions have violated federal law by not cracking down on this speech.
The previous paragraph obviously describes the efforts by federal lawmakers to pressure university presidents to more aggressively police anti-Semitic speech on campus. But it could just as easily describe another recent pressure campaign—the one directed at social-media platforms. These companies’ CEOs, too, have been hauled before Congress to account for their speech rules, had their policies denounced by the White House, been threatened with legal liability, and had private communications with government employees about what speech they allow on their platforms.
Despite these similarities, the two pressure campaigns have been received very differently. The Biden administration’s effort to influence social-media platforms’ content policies sparked a vociferous outcry from Republican officials, culminating in a First Amendment lawsuit that is now before the Supreme Court. The pressure campaign over university speech policies, by contrast, has generated very little alarm about the First Amendment interests of either the schools or their students. This is a problem, because the threat of government interference with free speech is very real in both contexts.
For years, the Biden administration and Democrats in Congress have pressured social-media companies to stamp out COVID misinformation, election denialism, and other harmful speech on their platforms. And for nearly as long, a loose group of Republican lawmakers, conservative influencers, and COVID contrarians has insisted that this constitutes a kind of “censorship by surrogate” that violates the First Amendment. In 2022, two Republican state attorneys general filed a federal lawsuit seeking to block the administration from this sort of “jawboning.” A conservative panel of the Fifth Circuit Court of Appeals ruled in their favor. The Supreme Court paused the ruling from going into effect, but agreed to hear an appeal in the case this term.
The Fifth Circuit’s decision in Murthy v. Missouri (originally called Missouri v. Biden) is sloppy on both the facts and the law, but it nonetheless articulates an important principle: We should be wary of overbearing government pressure on private speech intermediaries. The government possesses a great deal of power to make life better or worse for the private companies that it regulates. And companies are, in this context, often quite responsive to even subtle governmental threats, promises, or acts of intimidation. The result is that, by holding public hearings, arranging private meetings, and threatening economic or legal consequences if they do not comply, officials may be able to pressure private companies into suppressing constitutionally protected speech. They may, in other words, be able to wield the power that in theory the First Amendment says they may not wield: the power to decide what views and voices can participate in public discourse.
The pressure campaign against universities raises the same constitutional issue. Yet some of its leaders are among the most vocal critics of the Biden administration’s relationship with social-media platforms. Representative Elise Stefanik—who has gone viral for her questioning of the university presidents at the hearing this month—has decried this “weaponization of the federal government.” She joined with 11 other Republican members of Congress in an amicus brief on behalf of the challengers in the case, calling for an end to such “government meddling” in the marketplace of ideas.
In fact, the amount of pressure being wielded against universities may outstrip what social-media companies have faced. Despite constant threats, hearings, and proposed legislation, the platforms’ broad immunity from liability provided by Section 230 of the Communications Decency Act remains intact, and the prospect of legislative reform remains as elusive as ever. Contrast this with the very immediate threat of legal liability for universities under Title VI of the Civil Rights Act, which prohibits discrimination on the basis of shared ancestry or ethnic characteristics. The Department of Education has announced investigations into more than a dozen schools over whether they have violated Title VI by not cracking down sufficiently on anti-Semitic and Islamophobic speech. University officials have disclosed that DOE officials have also privately warned universities that they must act against specific controversial pro-Palestinian statements such as “From the river to the sea, Palestine will be free”—which, as many have noted, is in most contexts protected speech under the First Amendment. Members of Congress are working on a bill to strip schools of federal funding, and have agreed to a bipartisan resolution calling on Harvard’s and MIT’s presidents to resign. These are very serious threats for universities already facing immense pressure from donors and alumni to do more to restrict student speech.
You may not like what students are saying on campus, nor what the university presidents had to say about it during their congressional testimony. But the First Amendment is fundamentally concerned with how to treat speech that some people don’t like. At private institutions, university leaders, not government officials, ultimately get to decide what speech is permissible. At public universities, meanwhile, the broad protections of the First Amendment apply: political advocacy cannot be censored, no matter how controversial, intemperate, or even hateful. The Supreme Court has declared that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” But while this freedom may exist on paper, the enormous pressure from government officials is likely to make it hard for schools—and, by extension, their students—to exercise it in practice.
Of course, universities must act to prevent discrimination and harassment on campus, and the Department of Education has a responsibility to enforce Title VI. But when the government suggests universities need to repress speech that does not satisfy the relatively narrow statutory definition of harassment or discrimination, that is a problem. A risk-averse university will have a powerful incentive to suppress constitutionally protected speech to avoid even the possibility of legal trouble. This is a particular concern with regard to the debate over the Israel-Hamas war, because a defining feature of this debate is profound contestation over the boundary between political critique and bigotry. The result will be, almost invariably, the repression not only of truly anti-Semitic speech but a great deal of controversial political rhetoric.
This is not just about three elite East Coast schools. For every Harvard, there are dozens of other universities whose leaders are no doubt thinking about how to avoid becoming the next target of public humiliation and governmental pressure. This already appears to be having a marked impact on schools’ speech policies. After the hearing, several universities took the opportunity to issue public statements, unprompted, that on their campuses, the kind of speech that drew Stefanik’s ire would not be permitted.
Government officials have free-speech rights too, of course. Indeed, their job often requires them to articulate their views on matters of public importance. But in exercising this right, officials must not threaten or coerce. Nor should they exploit mechanisms, such as closed-door meetings or opaque investigations, that are not subject to democratic oversight. Where to draw the line between government speech and illegitimate pressure can be an extremely hard question to answer. The Supreme Court will hopefully give more guidance when it decides Missouri v. Murthy this term. Just as not all governmental criticisms of social-media companies violate the First Amendment, neither do all governmental criticisms of university policies.
We should not let the intense political disagreements of this moment blind us to this fundamental organizing principle of the democratic public sphere: Although the government can offer criticism, it cannot be permitted to do an end run around the Constitution. If the First Amendment protects against anything, it protects against illegitimate government pressure to censor protected speech.