Explaining the First Amendment to university presidents

Shockingly, the presidents of Harvard, Penn and MIT do not know that the First Amendment does not protect antisemitic hate speech or support for terrorism.Op-ed.

By Nathan Lewin, INN  7 December 2023

Nathan Lewin, J.D., 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.

(JNS) In the wake of the astounding testimony before Congress by the presidents of Harvard, Penn and MIT, 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’s 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.

2) 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.

3) 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.


December 9, 2023 | 9 Comments »

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  1. People also ask
    What are fighting words in the First Amendment?
    Fighting words are words meant to incite violence such that they may not be protected free speech under the First Amendment. The U.S. Supreme Court first defined them in Chaplinsky v New Hampshire (1942) as words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.


  2. Eddie here:







  3. In an earlier ruling in the 1930s the Supremes had ruled that even virulent antisemitic rhetoric was not a crime unless there was a “clear and present danger” that it eould cause violence in the immediate or near future. But of course this ruling was made before the second world war and the Holocaust, which increased public awareness of what a threat to human life hate propaganda, such as that engaged in by Nuremberg defendant Julius Streicher, a publisher of huge quantities of antisemitic hate propaganda , could create.

  4. Some years ago, the FBI raided the offices of AIPAC, the main pro-Israel lobbying organization in the United States, confiscated documents and other material, and arrested two AIPAC executives, charging them with have :leaked “sensitive information: about U.S. policies towards the Middle East Most of the information that the two AIPAC executives supposedly leaked was not even classified. The two executives charged with leaking “national security information” were eventually brought to trial. Nathan Lewin, the author of this article, successfully defended them, and they were acqitted. Thge defendants opted to be tried by a judge rather than a jury. In delivering his verdict, the judge ruled that the government had no legal basis at all for bringing these charges against the two executives, that their arrest and indictment were outrageous violations of the First Amendment, that the defendants should should never have been charged with any crime. He even went so far as to suggest that the Justice Department prosecutors who had persuaded a grand jury to indict them should be investigated themselves for prosecutorial misconduct and attempting to perpetrate a miscarriage of justice. This is a crime under Federal law. But the government took no action against the prosecutors and did not fire them. It was largely the result of Mr Nathan Lewin’s efforts that some degree of justice was salvaged from the situation.

    The two former executives then sued AIPAC for firing them immediately after they were charged and refusing to give them any monetary or even verbal support, even though their supposed crimes were performed as part of their official and entirely legal duties as officers of AIPAC. AIPAC refused to rehire them would not even give them recommendations for new jobs, even though they had years of experience working as executives not only for AIPAC but for several private corporations as well. Nathan Lewin was also their attorney in their lawsuit against their employers. I believe it wassettled out of court.

  5. America suffers from introspection – like most countries – but as the planet’s hegemon would do well to occasionally look at what other countries do and think. One result of the US Revolution was the French Revolution and then French was the international language because France was the biggest population and economy in Europe so the French version of The Enlightenment – “The Declaration of the Rights of Man” was the seminal paper of The Enlightenment liberties in Europe. For our sisters and daughters, the contemporary Olympe de Gouges wrote a lovely (semi -) pastiche “The Rights of Woman.”
    Article 4 of the R of M is quite clear that, “Liberty is the right to do as one wishes so long as one does not harm anybody else.” In this so obvious version it is hiding in plain sight that any chant or incitement to harm the liberty, security and property listed as natural rights in Art 2, let alone kill is against all law and rules regardless of category and nomenclature or other status.

  6. “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?”

    Since this illegitimate, corrupt, criminal, treasonous administration ascended to power, I have been asking the following:

    What do we do, where do we go, to whom do we turn, for enforcement of the law and the administration of justice when those whose duty and responsibility it is to enforce the law and administer justice (the DOJ and the AG) not only refuse to do their jobs, but are themselves actively engaged in violating the law? What do we do?

  7. The supreme court is egregiously wrong if they said, “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.” That doesn’t even make any sense. How do you make a threat with “reckless disregard for the listener’s fear of violence”? If you are making a threat, it is by definition intending to incite fear of something. Whether or not it is a threat of violence is easily determined by examining the content of the speech. Furthermore, outside of actual threats of violence, the speaker has no responsibility to any listener whose own sensitivity may range from the superstitious to the absurd.

    But speech at a university is not protected legally by the 1st amendment. A university is a private institution, and has the right to govern what people on its property or as members of the organization say as public speech. Naturally, as citizens, we hope the university respects freedom of speech, tempered by the need of the university to advance moral clarity at least. Antisemitism is an anti-intellectual value and speech advancing antisemitism has no place on a US college campus.

  8. Also, doesn’t the bill of rights only apply to the government? Universities can restrict speech. But if they create an antisemitic environment they fall afoul of Title VI of the Civil Rights Act which Trump extended to Jewish and pro-Israel students as a protected class. They should lose federal funding, accreditation, and tax exemption.