Former Harvard President Lawrence H. Summers took to X on Monday to argue in a string of outraged posts that certain University-hosted events might be considered antisemitic under Harvard’s newly adopted definition of antisemitism.

Summers suggested Harvard officials would need to take action.

But in doing so, he also brought an uncomfortable tension in Harvard’s free speech policies back to light — that the policies themselves don’t necessarily prohibit antisemitic speech in classrooms or at protests, regardless of its definition.

That fact has been at the heart of an extended publicity crisis for top University officials, caught between defending the right to free speech and presenting a forceful front against antisemitism after the University’s response to Hamas’ October 2023 attack on Israel convinced people across the globe that Harvard was a hostile place for Jewish students.

Former Harvard President Claudine Gay paid a particularly steep price for acknowledging that reality before Congress, telling U.S. Rep. Elise M. Stefanik ’06 (R-N.Y.) in a now-famous December 2023 exchange that calling for the genocide of Jews could violate University policies, but that it “depends on the context.” She resigned less than a month later.

While Gay quickly apologized, writing that calls for violence “have no place at Harvard,” Harvard’s policies then and now say that discriminatory speech must meet a series of additional conditions — some stated, some not — to be punished.

After Harvard adopted the controversial International Holocaust Remembrance Alliance definition of antisemitism, which classifies certain criticisms of Israel as antisemitic, both those who celebrated the decision and those who saw it as a crackdown on criticism of Israel said speech newly classified as antisemitic could become cause for disciplinary action.

And yet, according to more than a dozen First Amendment and academic freedom experts who reviewed Harvard’s policies, the rules remain mostly vague, based on conduct rather than speech itself, and heavily dependent on context.

Timothy J. Heaphy, a former U.S. attorney for the Western District of Virginia, said when it comes to campus speech and conduct policies, “the devil’s in the details.”

“You just can’t take words by themselves and say that they’re wrong, or that they’re not protected,” Heaphy said. “It all depends on the context.”

Changing Rules

Since becoming interim president 14 months ago, Harvard President Alan M. Garber ’76 has repeatedly updated protest and speech policies amid criticisms and confusion over what conduct is technically allowed — and, separately, what speech the University condemns.

The first and most far-reaching update was to the University-wide Statement on Rights and Responsibilities, a document originally released in 1970 that serves as Harvard’s foundation for protest policy.

Garber reinterpreted the USRR two weeks into his interim tenure to restrict protests to outdoor spaces that do not block “pedestrian traffic” and event spaces that are reserved in advance.

Columbia University law professor David E. Pozen said Garber’s administration interpreted a few key but ambiguous statements in the original 1970 document in “a manner that tends to limit the scope of permissible protest.”

Then, three months later, a group of Harvard’s pro-Palestine protesters staged a 20-day encampment in Harvard Yard, breaking several rules posted on gates around Harvard Yard but remaining mostly compliant with the USRR — even taking care to keep the Yard pathways clear.

The sun sets over the pro-Palestine Harvard Yard encampment in May. By Addison Y. Liu

When more than 20 encampment participants were later informed they had been placed on probation and five students were suspended, administrators largely relied on a clause in the USRR prohibiting the “interference with members of the University in performance of their normal duties and activities,” according to disciplinary records subpoenaed and published in September by the House Committee on Education and the Workforce.

New restrictions were added a second time over the summer, when Harvard officials rolled out Campus Use Rules that largely prohibited encampment staples like the use of tents and tables and raising flags.

Bradford Vivian, a free speech expert and professor at Pennsylvania State University, said Harvard’s policies were consistent with a trend among universities nationwide — especially at more elite, private institutions — to further narrow permissible protest.

“I was thinking, ‘What would these policies have looked like three or four years ago?’” Vivian said. “I assume that they would have been much shorter.”

When students returned to Harvard’s campus last fall, they were met with additional warnings about protest from Garber and Harvard Executive Vice President Meredith L. Weenick ’90 stating that the University was prepared to hold violators of its policies accountable.

“Where there is substantial disruption of the normal operations of our campus, University police may remove or remediate the disruption,” Weenick wrote in an email. “Participants should be prepared to be held accountable for their actions.”

In line with Harvard’s new campus use rules, Weenick’s words focused on the nature of campus disruptions rather than the content of their speech.

Conduct policies were updated a final time in January, incorporating Harvard’s newly adopted IHRA definition of antisemitism. Harvard officials updated the Frequently Asked Questions web page accompanying the University’s Non-discrimination and Anti-bullying Policy to clarify that its restrictions also applied to anti-Zionist conduct.

Robert Cohen, a professor of history and social studies at New York University, said the timing of Harvard’s adoption of the IHRA definition of antisemitism and NDAB clarifications was no coincidence.

“The University is not in any position to be objective about free speech,” Cohen said. “Congress and now the president and donors are holding a gun to its head, so it has to suppress speech.”

‘Context Matters’

Despite Garber’s promise to crack down on antisemitic speech on campus, the changes to University policies since Gay’s testimony have not necessarily introduced substantial limits on the content of speech itself beyond restrictions that existed well before her presidency.

Harvard’s NDAB policies, first announced in 2022, stipulate that policy violations occur when an individual engages in “discriminatory disparate treatment” or “discriminatory harassment.” As defined by Harvard, both require targeting individuals based on protected categories — which include race, religion, and political beliefs.

Regardless of the form discrimination takes, Harvard’s policies limit discipline based on the content of speech to that which is targeted at individuals and either results in “less favorable treatment” or is “so severe or pervasive, and objectively offensive” that it “denies the individual an equal opportunity to participate in the benefits of the workplace or the institution’s programs or activities.”

Duke University Law School Professor Amanda Martin said Harvard’s definition of harassment includes “some qualifiers that are extreme.”

“It would be a higher bar or a more difficult thing to prove that someone was being harassed at such a level that it fundamentally changed the workplace or the educational or living environment,” Martin said.

That means that speech — including antisemitic, racist, sexist, or otherwise hateful comments — is normally permissible unless it specifically targets or heavily impacts individuals.

It also might explain why protest speech that enraged affiliates and external observers alike, including well-known chants like “from the river to the sea” and “Israel is an apartheid state,” has not triggered disciplinary action from the University.

Harvard affiliates rallied on Monday in Harvard Yard to protest Israel’s deployment of tanks into the West Bank last week. By Ike J. Park

The FAQ page accompanying Harvard’s NDAB policies lists several examples of potential conduct violations — including the use of slurs, physical assault, advocating genocide, and accusing an individual of supporting genocide based on protected characteristics. But the list is not exhaustive — and not everything on the list necessarily constitutes a policy violation.

Howard H. Schweber, a First Amendment expert and professor at the University of Wisconsin-Madison who reviewed Harvard’s NDAB policies, said the updates to the FAQs did not alter the requirement that, to be restricted, speech must be directed at a specific individual.

“Context matters in a number of ways,” Schweber said. “It makes a difference whether a statement is directed at a person or made generally.”

After the University announced its decision to adopt the IHRA definition of antisemitism, Harvard Law School Professor Noah R. Feldman made the same point in defense of the decision, pointing out that speech — whether considered antisemitic or not — would still have to “come in the context of an act of harassment or bullying” to warrant discipline.

But Harvard Corporation Senior Fellow Penny S. Pritzker ’81 had a different interpretation of Harvard’s policies.

In an August interview with the House Committee on Education and the Workforce, Pritzker said she understood the repeated use of hate speech to violate Harvard’s speech policies, and believed “from the river to the sea” met that requirement.

While the interview was conducted five months before the NDAB updates, Pritzker said she believed policy updates earlier that year had already been changed to conclusively prohibit the repeated use of unambiguous hate speech.

And some politicians and Harvard affiliates have argued that strident language and prominent protests, like the spring 2024 encampment, created an atmosphere of intimidation for Jewish students. In a Wednesday interview with The Crimson, Rep. Nancy R. Mace (R-S.C.) said student groups at Harvard and elsewhere had “prevented Jews from going to class.”

Despite the confusion, Harvard officials and representatives have declined to say whether provocative or offensive phrases, used repeatedly, violate the policies on their own. They have also declined to answer questions about what conduct would have to accompany antisemitic language to trigger discipline.

A University spokesperson also declined to provide such clarification for this article.

Where Harvard officials have moved to discipline protest activity, they have cited actions that clearly violated conduct-based policies, either outlined in the Campus Use Rules or Garber’s 2024 interpretation of the USRR. Those rules specifically banned unauthorized temporary structures, displays, disruption of study spaces, or blocking of pathways as prohibited protests, in addition to other actions.

In the case of library demonstrations, classroom disruptions, and a building occupation, administrative action has been swift. Harvard doled out dozens of library suspensions in the fall, though large-scale protest activity was more limited than in the spring.

And — even in the absence of punishment — administrators have, at times, publicly censured speech they deemed offensive or discriminatory.

Gay condemned the phrase “from the river to the sea” in November 2023, and Garber condemned an antisemitic cartoon posted to social media by pro-Palestine student groups. After a protester tore down a poster on Monday of Israelis held hostage by Hamas, Harvard’s chief diversity officer decried his actions as “hateful” — and said they violated campus rules prohibiting the removal of approved displays.

‘Chilling Effect’

University critics, and free-speech proponents alike worry that Harvard’s policies remain ambiguous in ways that could restrict expression.

American Civil Liberties Union of Massachusetts Attorney Rachel Davidson wrote in a statement that she is worried the lack of clarity on permitted speech would favor less speech.

“Uncertainty will cause many students to self-censor rather than risk discipline,” Davidson wrote. “This sort of chilling effect detracts from the kind of open inquiry and debate that is so essential on college campuses.”

“If an institution needs a lengthy FAQ to explain its various speech policies, then those policies likely aren’t clear enough,” she wrote.

Rain pours down in front of tents and signs during the Harvard Yard encampment in May. By Julian J. Giordano

Multiple Harvard protesters, for their part, believe they already violate the NDAB policies. And they do not plan to stop.

Violet T.M. Barron ’26, an organizer with Harvard Jews for Palestine, said several of their chants — including variations of “Israel is a racist state” — are considered antisemitic by Harvard.

Since the January updates to the NDAB policies, pro-Palestine protesters have compared Israel’s war in Gaza to the Holocaust, accused Zionists of supporting a genocide, and explicitly labeled Israel as a racist state. They have not faced disciplinary action from the University.

“I think they’ve actually backed themselves into a corner where people could call them out for viewing things as antisemitic but not disciplining for them, which looks bad on Harvard’s end,” said Barron, a Crimson Editorial editor.

“By adopting the definition, they now officially consider such a wide range of things antisemitism,” Barron, who is Jewish, added. “I say right now, ‘Israel is a racist state.’ What Jewish person am I hurting?”

A University spokesperson declined to comment on Barron’s interpretation of the rules, or if the speech constituted policy violations.

Olivia G. Pasquerella ’26, another HOOP organizer, added that the public presentation of policy updates has appeared different from the actual disciplinary action.

“Their word is one thing and their action is always another,” said Pasquerella, a Crimson Magazine editor. “I don’t think that it is really productive to sit around and be like, ‘What does Harvard really mean with this policy, and what exactly can I say, and what is the line I can toe?’ because at the end of the day, the guidelines are always meant to clamp down upon student action.”

Protesters say they will not stop using phrases that say Harvard considers antisemitic — a label they dispute. And prominent professors also have concerns that the policies as written could limit academic debate on Israel and Palestine. But without clarity on where the lines between speech and conduct are drawn, student protesters and professors alike are left guessing.

“It’s up to the enforcer to decide when to enforce,” said Martin, the Duke Law professor.

“That means that favored speech may be allowed and disfavored speech may be punished,” she added.

Correction: March 7, 2025

Due to an editing error, a previous version of this article omitted the word “not” from a clause describing whether changes to University policies since Claudine Gay’s testimony have introduced substantial new limits on speech. In fact, such changes have not appeared to introduce new limits on the content of speech.

—Staff writer Samuel A. Church can be reached at samuel.church@thecrimson.com. Follow him on X @samuelachurch.

—Staff writer Cam N. Srivastava can be reached at cam.srivastava@thecrimson.com. Follow him on X @camsrivastava.