Earlier this month, the presidents of Harvard University, Massachusetts Institute of Technology, and the University of Pennsylvania testified before Congress about their tepid responses to antisemitism on campus. By now, you have probably seen clips of the trio’s horrendous overall performance, punctuated by their smug inability to answer Rep. Elise Stefanik’s (R-NY) question and say that calling for the genocide of Jews violates their schools’ codes of conduct. As a result, President Liz Magill of Penn stepped down, and support for the other two is falling.

All three were clearly reading off scripts prepared by their respective attorneys, and so no matter the leaders’ professional fate, the question remains: What happened? What critical error did their lawyers make that led to this moral failure, and how should they immediately correct it?

The answer lies in a better understanding of the First Amendment. Free speech is fundamental, but it has limits. The First Amendment is not a pass to harass or otherwise violate the rights of others. It does not protect trespassing, vandalism, assault, or the destruction of property, nor speech that isn’t meant to inform or persuade but seeks to disrupt lawful endeavors. The First Amendment does not shield true threats or intimidation, and just recently in Counterman v. Colorado, the Supreme Court clarified that this is a recklessness standard — for example, the First Amendment does not protect a person who consciously disregards a substantial risk that his or her communications would be viewed as threatening violence.

Supporters of the university presidents have claimed that Stefanik and her colleagues were somehow asking trick or hypothetical questions, trying to force them to say that typical pro-Palestinian speech is problematic. Nonsense. We live in a real world, and this hearing was addressing a real problem on real campuses. The presidents kept calling for context, so here goes: In the context of a post-Oct. 7 world, waving a Hamas flag and cheering on terroristic slaughter, even as baby hostages are still being held and bodies recovered; announcing that “armed struggle,” such as murder, is “legitimate;” and yes, calling for the genocide of Jews, whether you phrase it as supporting “resistance by any means necessary,” “one solution, intifada revolution,” or a chant of “from the river to the sea,” contextually, in the real world today, are all examples of communications that can realistically be viewed as violent threats.

To be clear, calling for the genocide of Jews, exactly like the pro-Hamas student groups on campus have consistently been doing for the past two months, does create a hostile environment for Jewish people, violates Title VI of the Civil Rights Act of 1964, and is not protected by the First Amendment.

From a legal perspective, it is easy to see where the general counsels went wrong. Their horrible answers were written under the mistaken assumption that the only limits a university can put on student speech are those discussed in 1969's Brandenburg v. Ohio. In that case, which had to do with a Ku Klux Klan rally, the Supreme Court held that a state could only infringe on speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg is a famously high standard, and that is precisely where universities are hiding. Notwithstanding the well-known research confirming that inflammatory antisemitic rhetoric leads directly to violence, officials have been telling students, parents, and now Congress that their hands are tied because, in most cases, there hasn’t been direct enough incitement.

Truthfully, even under Brandenburg, schools can still impose reasonable time, place, and manner restrictions. As the court in Grayned v. City of Rockford explained in 1972: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Common sense dictates that rallies celebrating calls for antisemitic genocide disrupt the educational enterprise and functioning of a school.

But that argument is unnecessary because Brandenburg is the wrong paradigm for schools to be using.

In 1969's Tinker v. Des Moines , the Supreme Court explained that the Constitution does allow for schools to restrict speech that will “materially and substantially interfere” with the “requirements of appropriate discipline” in the operation of the school” or “invad[es] the rights of others.” That is the standard these presidents, and everyone who works for them, should have been vigilantly enforcing.

For the record, even those pundits who (incorrectly) defended the presidents’ testimonies as being legally correct if morally tone-deaf had to admit that it did represent a glaring double standard. Each of those schools has in recent years protected other minority groups from supposed microaggressions by purposefully restricting speech that their leaders deem offensive. If you are only suddenly concerned about protecting speech when that speech targets Jews, well, there is a word for that.  

Regardless, private universities, such as Harvard, Penn, and MIT, can restrict certain speech without triggering any constitutional concerns. But even a public university is not a public street, and the rules for what must be allowed on each are very different. In 1972's Healy v. James, the court cited Tinker to hold that university officials do not have to tolerate student activities that breach reasonable campus rules, interrupt the educational process, or interfere with other students’ rights to receive an education. This is especially true when the speech takes place in a school-sponsored forum or is otherwise reasonably perceived to bear the school’s imprimatur.

The court has also repeatedly held, in Bethel v. Fraser in 1986 and Hazelwood v. Kuhlmeier in 1988, that schools have even greater latitude to limit student expression if they can establish a “legitimate pedagogical concern.” Ensuring that all students have a safe and harassment-free environment is just such a concern. Nor do schools have to wait for a breach to occur. Administrators can act if they can “reasonably forecast” that the expression in question would disrupt school discipline or operation or violate the rights of others. In Melton v. Young , for example, a court ruled that schools could prohibit the wearing of a Confederate flag jacket because it was reasonable to assume that it would be disruptive in an environment of heightened racial tension. Calls for the genocide of Jews are no less likely to disrupt than a jacket.

The congressional hearing was incredibly effective in exposing a massive problem, but at the end of the day, it doesn’t matter how many presidents fall if all of the men and women left in place do not also fix the policies. In that way, those lawyers are lucky because there is no need for radical change — just a little bit of Tinker-ing to put the balance back in place.

Mark Goldfeder is a former law professor and director of the National Jewish Advocacy Center. Follow @markgoldfeder on X.