The First Amendment, Calls for Genocide and “True Threats”

​That the performance of three Ivy League presidents before a congressional hearing last week was disastrous doesn’t need context – any version of academic freedom that tolerates a call for the genocide of Jews or any other group is well beyond any proper understanding of that concept. It would transform universities into arenas of fear.
 
This debacle continues to spark a long-needed reassessment of the correct balance in protecting speech on campus against the need to protect students with laws and court rulings that forbid “true threats.”
 
Eugene Volokh, UCLA School of Law professor and Senior Legal Advisor to Protect The 1st, explores this territory in a thoughtful essay for The Los Angeles Times. He urges university presidents to do all they can to protect students from true threats without abandoning free speech standards.
 
"Antisemitism on campus is a real problem, and in this fraught moment, many Jewish students are understandably scared. But if freedom of expression is to survive on American campuses — and for our nation’s vitality, it must — Magill’s original answer was right. Context does matter.

The categorical exceptions to the 1st Amendment are few, narrow and carefully defined by precedent. And while Penn is a private university not bound by the 1st Amendment, its policies commit the school to 1st Amendment standards."
 
Volokh finds considerable context for utterances or writings that are interpreted as calls for genocide for some, and merely an explication of just-war theory by others. Between these two polarities, however, many thorny questions present themselves. For example, is the call for a “global intifada” a true threat or a political statement? What matters most: what the speaker means or how it is heard by others?
 
Beyond the university, has the jurisprudence of true threats and incitement kept up with the internet age? Shouting “Kill the Jews” in an empty park is one thing. Promoting such a message with a vivid post that reaches millions of people – potentially inspiring the most unbalanced mind among them to take up a gun and attack a synagogue – is another.
 
Protect The 1st looks forward to examining these questions and holding debates on “true threat” exceptions to speech throughout 2024.