Harvard Professor Explains Why Claudine Gay Was Right

A Harvard law professor explained why Harvard President Claudine Gay was right in the remarks she made during a congressional hearing on campus antisemitism.

"When asked whether they would discipline students (or, I suppose, faculty) if they called for the genocide of Jews, each president responded that the answer depends on the context of the utterances," Charles Fried, a professor at Harvard Law School and a former solicitor general, wrote in the op-ed for The Harvard Crimson.

"I have taught at Harvard Law School since 1961 and began practicing before the Supreme Court in 1985 — for four years as Solicitor General of the United States — and I would have felt professionally obligated to answer as the presidents did. It does depend on the context."

Amid intense pressure calling for Gay to resign or be removed, the university's highest governing body announced on Tuesday that Gay will remain in her role.

"Our extensive deliberations affirm our confidence that President Gay is the right leader to help our community heal and to address the very serious societal issues we are facing," the Harvard Corporation said in a statement following its meeting on Monday night.

Gay testified before a House committee on December 5 alongside University of Pennsylvania President Liz Magill and Massachusetts Institute of Technology President Sally Kornbluth. The presidents were called before the committee to answer accusations of failing to protect Jewish students amid a reported rise in antisemitism on college campuses since the outbreak of Israel's war in Gaza, which is facing growing criticism for the mounting Palestinian death toll.

They faced a backlash over their responses, particularly to a line of questioning from Representative Elise Stefanik, who repeatedly asked whether "calling for the genocide of Jews" would violate the schools' codes of conduct.

Magill, who resigned on Saturday amid criticism of her testimony, had called it a "context-dependent question."

Gay gave a similar response. "It can be, depending on the context," she said. Pressed further, she said that Harvard takes action when the speech "crosses into conduct that amounts to bullying, harassment, intimidation."

During the lengthy hearing, Gay said that Harvard embraces "a commitment to free expression even of views that are objectionable, offensive, hateful."

Gay later apologized in an interview with the student newspaper, saying she "got caught up in what had become at that point, an extended, combative exchange about policies and procedures."

She faced calls from lawmakers and donors to step down over the comments, while hundreds of Harvard faculty members—including Fried—and alumni urged the university's governing body in a petition to resist political pressures that "are at odds with Harvard's commitment to academic freedom."

Fried told Newsweek that he wrote the op-ed because the House subcommittee seemed "to be laying a trap for the three presidents."

"Any fair-minded person truly seeking to inform itself, and the public, would've followed up with an inquiry about what the circumstances they referred to were," he said. "The answer would've been along the lines of John Stuart Mills on liberty and Supreme Court doctrine which more or less followed those lines."

In his op-ed, Fried noted that Gay and her peers were right to cite context in their answers to Stefanik.

He noted that the Supreme Court unanimously ruled in the 1969 case Brandenburg v. Ohio that "constitutional guarantees of free speech and free press do not permit a state to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Many, or even most, constitutional democracies do not go so far, but the U.S. Supreme Court "has never deviated from its principle of incitement," Fried wrote.

Even in the 2010 decision in Holder v. Humanitarian Law Project regarding the Patriot Act's prohibition on providing material support to foreign terrorist organizations, Chief Justice John Roberts "was careful to carve out free speech from the ruling," Fried added.

Harvard and the other universities have shown their commitment "to protecting First Amendment values over the years," Fried wrote. "So it is not surprising that their presidents would have answered that whether they would discipline or expel students for advocating genocide depends on the context. If one seeks to follow constitutional principles, answering this question certainly does depend on the context."

Fried recalled how in 1991, then-president Derek Bok wrote an essay defending the rights of students to show offensive messages after some students displayed Confederate flags outside their dormitory windows.

'Rhetorical Trap'

"I must admit that I have never seen such flags in recent times," Fried wrote. "Yet, even today, under the circumstances Bok faced, if I were a university president pressed to answer yes or no whether the student speech in question would subject the students to discipline, I would have to reply that, yes, it depends on the context."

Stefanik "sought to lay a rhetorical trap" for the three university presidents, he wrote.

"But I doubt Stefanik is as principled as she purports to be," he wrote. "Were the facts of the event before President Bok 30 years ago to recur and the administration to fail to discipline the display of Confederate flags, would Representative Stefanik have had the same reaction? I doubt it."

Newsweek has reached out to Stefanik's office and Gay via email for comment.

Free speech experts have also noted that the presidents' answers followed current interpretations of the First Amendment.

The First Amendment's protections for speech "extend even to deeply hateful speech, unless it constitutes a true threat, incitement to imminent violence, or harassment, which is legally defined as requiring severity and pervasiveness," Suzanne Nossel, the CEO of the nonprofit PEN America, said in a statement.

"So even a call for genocide – though odious and warranting unequivocal condemnation – is not speech that could be banned or punished by the state."

Update 12/12/23, 9:45 a.m. ET: This article and headline have been updated to reflect Harvard's governing body confirming that Gay will remain in her post, and to add comment from Charles Fried.