Published On: December 16th, 2023

Miss Constitution has written column after column on what constitutes Constitutionally protected Free Speech under the 1st Amendment to the United States Constitution.  She assumed that the three Presidents of prestigious American universities who were questioned about the details would know this information by heart.  Not only do they not know, many Congresspeople do not know, the public certainly does not know, television and radio commentators do not seem to know, and many commentating attorneys do not seem to know.  No one, evidently, is reading Miss Constitution’s columns!  To review:

  1. The US Constitution applies to government actors, or private actors who accept a sufficient amount of public funds to be deemed government actors. Question #1 – Are Harvard University, the University of Pennsylvania, and Massachusetts Institute of Technology “government actors”?  The answer is YES as they accept public funds or taxpayer dollars.
  1. As government actors, Harvard, U of Penn, and MIT are not allowed to censor speech on public policy if the speech is delivered in an appropriate forum, following time, place, and manner restrictions. Note that the speech must be on PUBLIC POLICY. Obscene speech, speech that threatens an individual, or speech that is intended to cause immediate lawlessness is NOT free speech protected by the US Constitution.  Question #2 – Was the recent speech on Harvard, U of Penn, and MIT campuses regarding the current Israeli/Palestinian conflict about public policy?  The answer is YES as elected leaders in our country have taken certain public policy positions regarding the conflict.
  1. What is confusing to many (if government actors are involved, if the speech is about public policy, delivered following time, place, and manner restrictions, not obscene, not attacking an individual personally, and not threatening immediate lawlessness) is that political speech can be hateful and still Constitutionally protected. Government actors cannot censor hateful speech if all rules are followed.  An example:  a few years ago protesters in Chicago marched down the street shouting, “Pigs in a blanket – fry ‘em like bacon.” This slogan implied injury or death to police officers.  This is hateful public policy speech.  It is fully protected from censorship by the City of Chicago (a government actor), as it is about public policy (defunding the police) that followed time, place, and manner restrictions (the marchers had a permit), and did not single out any individual police officer or ask that protesters commit lawlessness. Question #3 – Is calling for the eradication of Israel by chanting “From the river to the sea” Constitutionally protected hateful public policy speech?  The answer is YES as the speech is about America’s public policy regarding Israel, does not single out a particular Israeli to be eradicated, is not obscene (f- – – Israel would be obscene), and was delivered in a forum approved by the University.

What each of the Presidents of Harvard, the University of Pennsylvania, and MIT should have said is that as government actors receiving taxpayer funds, they have an obligation to protect free public policy (also called political speech) if the speakers have followed the rules set down for political speech by each University and are not threatening individual students or inciting immediate lawlessness.  When a Congresswoman asked if speech calling for the genocide of Israel (what “from the river to the sea” really means) is protected speech each should have said YES.  In addition, each should have said that the University has a duty to protect the speaker in these circumstances, regardless of the content of the speech.  Instead, each answered protection is “context-dependent” – whatever that means.  The key is the difference between thought and conduct.  Conduct can be restricted, thought cannot – even thought translated to political speech. What these Presidents should have said, also, is that they have rules against hateful conduct that they are prepared to enforce.

Miss Constitution, these rules about the 1st Amendment Free Speech Clause are infuriating.  Surely the Founders did not condone hateful speech protected by government actors.

Yes, they did.  The Founders wanted full discussion and debate about any issue regarding public policy.  You will recall that John Adams tried to censor his critics by passing the Alien & Sedition Acts to keep them quiet.  You will recall that Woodrow Wilson tried to silence those opposing World War I by passing the Espionage Act and the Sedition Act and jailed many persons who opposed the war for long terms.  The Founders wanted full debates so that the public could hear both sides and come to its own conclusions.  In the current Israeli/Palestine debate, there are those who view the creation of Israel by the United Nations in 1948 an “occupation” of Palestine.  There are those who view the creation of Israel by the United Nations an internationally binding act that must be supported.  There are those who view Israel as the “oppressor” of Palestinians and those who view Israel as historically oppressed.  All views, no matter how repugnant to those who oppose them, are Constitutionally protected from government censorship if delivered in a proper forum within reasonable time, place, and manner, restrictions and are not directed to an individual personally or intended to incite violence.

What recourse, then, did the Founders provide for opposing hateful speech, even if that speech is within the rules?


Why are these Constitutional distinctions so hard to understand?

Miss Constitution thinks that these distinctions are hard to understand because we do not teach the philosophical fundamentals of the Republic in our schools and many of the concepts are counter-intuitive.  It is counter-intuitive to be tolerant of hateful political speech as it is antithetical to part of our Rule of Law that promotes courtesy and comity – Unwritten Law.  It is also counter-intuitive to basic Judeo-Christian notions of kindness and decency.  Miss Constitution would have us remember that the Founders had a good reason for even counter-intuitive concepts.  Free political speech prevents hateful groups from going underground – a healthier way to deal with faction that erodes the system.

Were Miss Constitution the President of one of these prestigious institutions she would have said that her duty as head of a government actor is different than her personal views.  Her personal view is that hate involving status alone stands contrary to our Rule of Law and to the ideal of the development of the person upon which our society rests.  She would have said that she purposely encourages faculty hires that represent multiple points of view so that students at her institution are exposed to the critical thinking so important in the development of quintessential citizenship in the United States.  She would have said genocide in any form is counter to America’s Moral Law and should be opposed vigorously as public policy.  She would have said that a Congressional hearing on behalf of the public to inquire whether heads of important universities understand their duty and also understand important Constitutional concepts and distinctions is important and welcomed.

Unfortunately, none of the three heads of Harvard, U of Penn, and MIT was adequately prepared.  How sad for them, their students, and for our nation, as well.

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Miss C is taking questions you have about the US Constitution. Simply submit your questions and she’ll reply to you with answers. Great questions may be featured in her blog as well as added to an FAQ page. 

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    About the Author: Miss C

    M.E. Boyd, "Miss Constitution" is an attorney, author, and instructor in Business, Educational, and Constitutional Law. She has appeared on television and radio and speaks publicly on American history, the founding documents, and current political issues. Her mission is to help citizens understand the Founding philosophies behind the system so that we can-together-help preserve the blessings of liberty and prosperity. Read more about Miss C