THE GREAT ESCAPE

Q: Is a call for genocide of all Jews a violation of the University of Pennsylvania's Code of Student Conduct”?

The question sounds like a layup, but it isn't. The easy answer, and the one Penn President Elizabeth McGill should have given to Congresswoman Stefanik was “Absolutely!" 

That answer would have been politically correct, but ... .

Even assuming The First Amendment applies to Penn ("Congress [the government] shall make no make no law...abridging the freedom of speech")  it is not at all clear on the subject. Hate speech is not necessarily criminal and it could be persuasively argued the Court has sanctioned it. American Nazis, wearing their swastika armbands, were free to parade in Skokie, Illinois, despite the fact that there was a large Jewish population in that community, many of whom were holocaust survivors. Apparently, it is the Court’s view that Nazis have First Amendment rights, as do Communists, K.K.K. leaders, and those who call for the overthrow of the government.

In Brandenburg v. Ohio, the Court established a boundary of what’s ok, and what’s not on that issue. Brandenburg, a KKK leader was convicted of violating a statute that made it a crime to advocate:

 "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

The Supremes reversed his conviction, establishing a two-pronged test for speech that was beyond the protection of the First Amendment:

Speech can be prohibited if it is (1)“directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action.”

Otherwise, it is protected. 

So what about hate speech, e.g. a call for genocide? Is it part of a bull session in a fraternity house or a thousand-person rally of swastika-bearing students brandishing clubs? Is either likely to produce "imminent lawless action"? Context counts. The former may pass the Brandenburg test, while the latter may not.

S0 when President McGill said that a call for genocide was “Context dependent”, and it depended on whether“the speech turns into conduct” she was being  close to legalistically correct, doubtless having been prepared for her testimony by single-minded lawyers, not PR specialists or politicians.

And the Penn code of student conduct was. I am confident, written by the same genus of narrow-minded lawyers who prepared the witnesses and led them to the slaughter. The Code reads, in part:

“The University condemns hate speech, epithets, and racial, ethnic, sexual and religious slurs. However, the content of student speech or expression is not by itself a basis for disciplinary action. Student speech may be subject to discipline when it violates applicable laws or University regulations or policies.”

Have you ever seen such word-salad? WTF does that mean? How vague can you get? The result is the University Presidents got hounded in the press, but the strain of lawyers who trained them for the hearing, those who taught the Presidents what questions to expect and how to answer them, and who authored those Codes of Conduct, slipped away in the smoke. 

If the press named the individuals and blamed them, I missed it.

 A bientot.

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