“He is led by an invisible hand to promote an end which was no part of his intention” – Adam Smith, Wealth of Nations.

What invisible hand led the President of Harvard University to promote the exclusion of black candidates from top jobs in America is unknowable, but that is a possible unintended consequence once her letter of resignation was released.  By immediately going to racial animus as the reason for her ouster (through a “well-laid trap by Congressional demagogues”), she may have chilled minority hires as too dangerous for a private or public company, a charity, or even another educational institution to make.  The Boards of these institutions have a high duty not to put themselves at undue risk of lawsuits and personnel toxicity that impacts their brand and/or their share value.  Miss Constitution is sure this was not her intention but it may be one unfortunate outcome. 

More important than her mistake in judgment regarding a narcissistic resignation letter that burns all bridges is the continued confusion regarding the Free Speech Clause of the 1^st Amendment to the United States Constitution.  The President of any education institution that accepts public funds (taxpayer dollars) must know the rules around Constitutionally protected “free speech” by heart.  Almost no commentators, even attorneys, got the analysis right.  Here is what one must understand:

As a general rule, one does NOT have free speech rights to say anything one wants.  Children are required to obey their parents and their parent’s rules for what is acceptable speech.  In the movie A Christmas Story, Ralphie was constantly having a bar of soap placed in his mouth for copying the speech of his father.  Students have limited free speech in and out of public schools.  The Supreme Court has recently made an inexplicable ruling regarding texts by a student about a decision of a public school coach to which the student responded with obscenities.   Rule #1 – children have limited Constitutionally protected free speech rights in taxpayer-supported schools.  Private elementary and secondary schools that do not accept substantial taxpayer dollars may censor student speech.

Adults, and this would include college-age students, have Constitutionally protected free speech rights if the organizations they are in or the schools they attend receive taxpayer dollars.  Harvard receives public funds and is subject to the requirements of the 1^st Amendment Free Speech Clause to the United States Constitution.  However, there are rules about the type of speech that is protected from censorship by the organization or the school and there are rules about where the speech may be given (forum), the time it may be given, and the manner in which it is given.   Rule #2 – the speech must be about public policy, also known as political speech.  The speech may not be obscene, it may not be directed at an individual person so as to cause fear of harm, and it may not promote imminent violence.  The publicly-funded school or organization can determine where the speech can be delivered, how long it can last, and in what manner it may be delivered. An opportunity for counter-speech must be provided following the same rules but not necessarily at the same time.  Organizations that do not receive a “substantial” amount of public funds (determined by a court) may censor speech.

So, in general, those living in the United States do not really have generalized “free speech.”  If what one wants to say is not a political viewpoint, one has no “right” to say it.  One has no “right” to be rude; one has no “right” to get in someone’s face and yell and scream; one has no “right” to lace speech with obscenities; and one has no “right” to be disrespectful.  But, if the speech is on public policy, is not personal or obscene, and is being delivered say, in a classroom at Harvard University, then the speech may even be hateful to some and still be Constitutionally protected from censorship.  Rule #3 – Hateful speech that follows all the rules may not be censored.  Nor can the counter-speech be censored.  The idea is that institutions that take public funds present all sides of an argument.  Excellent professors teaching certain subjects make sure students learn how to think critically.

Some of the confusion arises when speech is connected with protests, or assemblies, that are also protected by the 1^st Amendment to the United States Constitution.  Protests do not have to emerge from publicly funded entities but they do have to follow rules regarding where the protest can take place, the manner of the protest, and the time of the protest.  Protests that stop traffic, that involve destroying art, that involve violence against persons or property, that intimidate or cause fear of harm, or that invite criminality may be absolutely restricted, canceled or broken up whether or not the protesters carry signs or yell what would otherwise be Constitutionally protected speech if delivered in a proper forum.  Rule #4 – viewpoint that is protected from censorship can easily morph into conduct that is not.

The mess made at a Congressional hearing by three Presidents of prestigious publicly funded institutions of higher education occurred because none of the three really knew the extent of the rules around “free speech” and “peaceful assembly” as interpreted by the Supreme Court regarding the 1^st Amendment to the United States Constitution.  The question asked by Congresswoman Stefanak required that knowledge.  She asked if “calling” (viewpoint) for the genocide of the Jewish people violates the code of student “conduct” (behavior) at Harvard University.  Rule #5 – “viewpoint” is not the same as “conduct.” 

Students at Harvard have a Constitutionally protected right to the view that Palestine should retain all territory between the Jordan River and the Mediterranean Sea even if that means the removal of the Jewish people now there.  This is hateful to some but may not be censored by the school.  But students at Harvard do not have a Constitutionally protected right to translate that viewpoint into intimidating conduct at the school by threatening Jewish students or marching in front of their dorms or fraternities and sororities or by pounding on the windows of the library, forcing Jewish students to hide in the restroom.

The answer to the Congresswoman’s question is:  We are an institution that receives a substantial amount of public funds so may not censor student political viewpoints.  Those views are Constitutionally protected from censorship by the 1^st Amendment to the United States Constitution.  We may and should, however, tightly restrict where and how those views can be expressed as conduct, including marches and protests, to honor our commitment to the safety and comfort of all members of our student body, faculty, and administration.  As a person, not the President of the school, I must say that I vehemently oppose a viewpoint that calls for the genocide of any people and reject the inhumanity of that position as violating Moral Law.  A full and vigorous debate on this issue should be held at Harvard and it is our duty as a school to allow and protect all points of view in that debate.

What invisible hand caused the President of Harvard to be unprepared for a question about the Constitution and its relationship to speech and conduct at her school, to be unaware that she was not prepared so made an irrelevant apology, and then resigned in anger, attacking the motives of her Board and others, remains a mystery.  This event has been a giant lesson in the necessity of Civics Education, even and especially for those of great power and responsibility.