It is infuriating that college administrators have been so willing to censor speakers they disagree with while tolerating vicious speakers who find student support on campus. They have knelt not to moral justice, but to the mob. This subjective approach to campus speech codes is utterly anathema both to the First Amendment and to the credibility of campus speech codes in general.

Still, I think it's a mistake to adopt restrictive campus speech codes. This concern bears new relevance amid fiery domestic political debates over the war between Israel and Hamas. Consider the fallout from testimony by the presidents of Harvard, MIT, and the University of Pennsylvania on Tuesday. Those presidents received heavy criticism for refusing to answer "yes" or "no" to a question by Rep. Elise Stefanik (R-NY) on whether campus calls for the genocide of Jews violate their college rules.

A central challenge here, as outlined in a good exchange between Jason Willick and Richard Goldberg, is the fact that colleges have previously and repeatedly broken their own speech codes by applying them in a subjective rather than objective fashion. Another challenge is the obvious reality, born out by multiple videos, that many Jewish students or pro-Israel students have been physically threatened or intimidated into silence. It is absurd that identified students have not been expelled for this activity. Free speech is nonexistent when only some of those who wish to speak freely can actually do so.

Still, I think Willick is correct in arguing that the First Amendment should serve as the centering principle for speech codes and that these standards should apply for "blacks or gays or Palestinians or any other group...." Willick underlines why banning all campus calls for genocide in all cases would be a mistake. He notes that "some people claim Israel’s military operation in Gaza is a 'genocide.' This is preposterous. But I am confident in the following: if a 'genocide' exception were explicitly created for campus debate, it would mainly be used to muzzle advocates of Israel."

Indeed.

The central problem here, reflecting the central foundation for the First Amendment and its case law's righteous place in guiding campus speech codes, is the concern that adopting more restrictive speech codes is a slippery slope to a worse society. America is exceptional because we tolerate hateful speech, not in spite of that. American society is stronger and healthier than European societies because we do not ban the burning of the Koran, Bible, or Torah. And because racists and fanatics are able to show their colors and earn their broad alienation rather than taking reinforced refuge in their own persecution.

Where administrators regulate politically loaded words or arguments to have the same meaning and restrictions in all cases, political debate on matters of public import, the sacrosanct priority interest of the First Amendment, is damaged. We gained another example of this with Stefanik's expansive notion of the word "intifada" as constituting a call for genocide wherever it is used in relation to the Israeli-Palestinian conflict. The problem here is that in its basic form, "intifada" translates as a rallying cry. Yes, many are now using the word in the context that Stefanik identifies. But others are not. The historic use of "intifada" has included both vicious violence such as Hamas's 2001 bombing of teenage nightclubbers and nonviolent political rhetoric by Palestinians. The two are not the same and should not be treated as such.

Arguing a similar point , the Washington Post's Shadi Hamid was challenged by Foundation for the Defense of Democracies CEO Mark Dubowitz. Dubowitz suggested that intifada is a call to incitement and also that Hamid is the "most skilled Muslim Brotherhood propagandist in America." This latter point is news to me, seeing as Hamid goes to greater lengths than any other left-leaning journalists in Washington to facilitate open debate on controversial matters. Regardless, I think the argument underlines why we should not want to shut down controversial debates. Disagreements over the starting points of an argument means that starting points often need expanding.

Or as Chief Justice John Roberts opined in the case of Snyder v. Phelps (authorizing hateful protests outside the funerals of fallen soldiers), "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. ... As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate." GOP presidential hopefuls have shown a concerning distaste for this approach since Oct. 7. On Wednesday, for example, Nikki Haley called for the removal of tax-exempt status for colleges that do not ban all calls for genocide. This policy would not pass constitutional muster if motivated by speech concerns (although ending tax-exempt status for all colleges would be good policy). A better approach is clear.

With strictly enforced guardrails against physically threatening other students or breaching incitement laws (speech which seeks and is likely to secure imminent unlawful violence), students should be free to state their political beliefs. Put another way, the First Amendment means students should be able to call for nuking the entirety of Gaza or for the elimination of Israel. As foul as either argument might be, political speech must be protected.