Ben Sasse, a Yale graduate, who was President of the University of Florida when he wrote this article for The Atlantic (he resigned from the Presidency of this public university after seventeen months, but continues to earn his one million dollar salary as President Emeritus), is correct when he says that none of the Presidents who testified before the United States House Committee on Education and the Workforce on December 5, 2023 were lying: “The three university presidents… were likely not lying.”

In response to Representative Elise Stefanik, a Harvard graduate, who contended that the chants “There is only one solution, Intifada Revolution” and “Globalize the Intifada” are calls “to commit genocide against the Jewish people in Israel and globally” and who asked “Do you believe that type of hateful speech is contrary to Harvard’s code of conduct”, President Claudine Gay of Harvard said that “We embrace a commitment to free expression, even of views that are objectionable, offensive, hateful. It’s when that speech crosses into conduct that violates our policies against bullying, harassment…” She was interrupted by Stefanik, who asked “Does that speech not cross that barrier? Does that speech not call for the genocide of Jews and the elimination of Israel?” President Gay responded that “We give a wide berth to free expression, even of views that are objectionable.” In response to Stefanik’s continued questioning, President Gay repeated that “When speech crosses into conduct that violates our policies, including policies against bullying, harassment, or intimidation, we take action. And we have robust disciplinary processes that allow us to hold individuals accountable.” More generally, President Gay and the two other Presidents said that whether or not such speech violates their universities’ code of conduct depends on the context. As President Liz Magill of Penn put it to Stefanik, “It’s a context-specific decision, Congresswoman.” Charles Fried, in his article for The Harvard Crimson entitled “President Gay Was Right: Context Matters,” said that “I would have been professionally obligated to answer as the presidents did. It does depend on the context.”

A somewhat more detailed explanation was given by Marshall Breger, a law professor at The Catholic University of America: “[i]n a sense she [Magill] was correct. Is the call for killing an ethnic group—Tutsis in Rwanda, Jews in Israel, Rohingya in Myanmar—speech or conduct? The Constitution would view it as speech, and therefore protected, unless directed to specific individuals. Private universities are not required to follow First Amendment criteria, but their own codes of student behavior promote free speech and academic freedom while also prohibiting the bullying and harassment of specific individuals.” Berger could be said to be concurring with Harvard law professor Jeanine Suk Gersen, who had written in The New Yorker that “The claim that the answer depends on context is correct; any responsible determination of a policy violation is context-dependent. In the context of October 7th, it would have been clearer to say something like “Yes, calling for a person to be killed because they are Jewish or Palestinian would constitute bullying and harassment. And, if the phrase ‘from the river to sea’ was used specifically to threaten to kill someone, that would at a minimum violate the rules.”

To quote Sasse’s article again, “The university presidents who testified before Congress were not wrong that the line beyond protected speech is action—this is the well-established American tradition.”

Lying in their testimony to the House Committee and telling Stefanik what she wanted to hear would have helped these Presidents to keep their jobs (Magill resigned within a week of this testimony, and Gay resigned one month later). They did not lie, however, and they did lose their jobs in the aftermath of their testimony. Perhaps surprisingly, since this committee was clearly conducting a witch hunt, by treating the committee’s questions as sincere inquiries, and by responding with sincere answers. As Professor Suk Gersen says, “The presidents walked into an ambush, having prepared for a deposition (where counsel advises minimalist answers) rather than for political grandstanding. And the moment plainly needed a moral statement rather than a legally precise reply.”

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