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A pro-Palestinian poster is attached to a parking sign across the street from the University of Montreal metro station in Montreal, on Nov. 14.Christinne Muschi/The Canadian Press

What is protected by the right to free speech? And what isn’t?

Let’s start with an easy case.

At a pro-Palestinian protest on Sunday inside Toronto’s Eaton Centre, a masked man was filmed pointing at someone standing next to a police officer. “I will lay you to sleep,” he shouted. “I’ll put you six feet deep.”

Threatening physical harm to someone, on camera, with the police right there, sounds like something that might relate to Section 264.1 of the Criminal Code: “Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person.” The punishment is up to five years in prison.

As U.S. Supreme Court justice Oliver Wendell Holmes wrote a century ago, “the most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” Nor does it protect the right to shout, “I will kill you,” in a shopping mall.

And now, the hard cases.

In Canada, free speech – “freedom of thought, belief, opinion and expression,” in the words of the Charter of Rights – is a fundamental value. Without the right to share ideas that others may find disagreeable and even offensive, democracy is impossible.

An institution that should be especially conscious of the need to protect free expression, especially of unpopular views, is the university. It’s a place where students should encounter ideas they disagree with, and where scholars must have the freedom to advance theories that their colleagues, and the institution, find disagreeable.

The university should be a physically safe space. It should not be an intellectually or ideologically safe space. Universities have spent the past few decades blurring that distinction.

Earlier this month, the presidents of three renowned universities were summoned before the U.S. Congress and grilled about antisemitism on campus. When asked by a Republican congresswoman whether calling for the genocide of Jews would violate university codes of conduct, the president of the University of Pennsylvania, Elizabeth Magill, famously said it was a “context-dependent decision.”

She is no longer president of the University of Pennsylvania.

Her answer was terrible politics. It was also hypocritical, given the efforts universities have devoted to cancelling opinions disapproved of by the progressive ascendancy, usually by defining the expression of such ideas as violence against a marginalized group. Ms. Magill’s answer came across as a selective embrace of free speech.

But at the same time, her answer wasn’t bad law. Or even a bad university policy.

Last week, five Liberal MPs sent an open letter to Canadian university presidents, expressing concerns about antisemitism. They also asked a series of questions, the first of which was:

“Is a call for genocide against the Jewish people, or the elimination of the State of Israel, a violation of your university’s code of conduct?”

I wrote in October that anyone carrying a banner reading, “From the river to the sea, Palestine will be free,” is effectively calling for genocide, or at the very least the ethnic cleansing of Israel’s majority Jewish population. At best they are engaged in magic thinking, ignoring the fate of Jewish communities from Egypt to Iraq – communities a thousand years older than Islam – that were erased in the 20th century, and millions of whose exiles and descendants now live in Israel.

“From the river to the sea” is a monstrous idea. But believing in the idea, and expressing it, should not be illegal in Canada, and almost certainly is not. Nor should its expression, as an idea, be banned from most contexts on a university campus.

If you want to stand on a university street corner with a “from the river to the sea” banner, you generally should be able to. But if you interrupt a first-year inorganic chemistry lecture with chants of “from the river to the sea,” or you want to follow around Jewish students or faculty and shout at them, your speech should not be protected, on campus or off – because of the context.

Universities in Canada and the United States are struggling with all of this in part because of a much bigger problem: The academy has spent the past couple of decades reconceptualizing all human interaction as occurring through a matrix of oppressors and oppressed. Race has become the shorthand for figuring out where everyone sits. And Jews, Western society’s original outsiders for 2,000 years, have been redefined as members of the alleged white oppressor class.

A recent Harvard Caps Harris poll asked Americans: “Do you think that Jews as a class are oppressors and should be treated as oppressors or is that a false ideology?”

An overwhelming majority of adults said this was a false ideology. Many must have found the question incomprehensible. But 67 per cent of those from the age of 18 to 24 answered that Jews were “oppressors.”

This question was not asked about Jews in Israel. It was asked about Jews, generally.

To change such attitudes, more campus speech codes won’t help. More free and open speech, to prune back a tangled garden of socially destructive ideas on campus, is the only way out.

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