Most prominently for the moment, dueling suits by pro-Israel (typically Jewish) and pro-Palestinian students have been filed in judicial and administrative forums against universities alleging either or both a failure to provide a campus free of a hostile environment or specific violations of free speech rights or, in the case of private universities, academic freedom.
Jewish students have complained that universities tolerate antisemitism speech when they would not tolerate similar speech against other groups. Aside from many such suits, what is surprising is how fumbling universities’ responses have been. Granted, they face conflicting constituencies, but in many cases, the legal obligations to prevent the creation of a hostile environment and investigate complaints are clear enough. Still, those have not been translated into action. Many universities seemed paralyzed this past year, hoping the issue would go away if nothing was done.
It is too early to assess the ultimate outcomes of these lawsuits. The results so far are mixed and tentative, such as denying a motion to dismiss. But it is not too early to point to emerging legal issues that are not yet settled.
American free speech law assumes the validity of reasonable content-neutral, time, place, and manner restrictions even where these deny a speaker their preferred form of speech. A rule barring overnight sleeping on campus lawns would be a reasonable neutral time, place, or manner rule, but it arguably denies speakers an effective means of communicating. Similarly, a rule barring blocking access to a campus building where a controversial speaker is lecturing would qualify as such a rule, but it denies the putative speakers the right to what they see as an effective form of speech. The latter case is somewhat complicated because there is no free speech right to interfere with someone else’s speech. After events of the last school year, including encampments, takeovers of buildings, chalking slogans on sidewalks, blocked access to school buildings for Jews or Zionists, and slogans suggesting Jews and Zionists were unwelcome on campus, many universities have adopted or strengthened such rules.
Some universities are responding by attacking the strengthened rules as a denial of free speech to pro-Palestinian students. Will these enhanced limitations on speech survive judicial review? They should, even though many were adopted in response to excesses by one side of a debate and therefore will be challenged as viewpoint-based. The argument that they are invalid assumes that the government may not learn from or act on experience—a dubious proposition.
Title VI of the 1964 Civil Rights Act requires colleges accepting federal funds (almost every college in the United States) not to tolerate a “hostile environment” directed at members of racial or ethnic groups. But what if that hostile environment is created by speech that might reasonably be characterized as political—say, claims that supporters of Zionism or Israel are guilty of aiding and abetting genocide and are not welcome in this dorm? There is no question that Jewish students hear such speech—and a university’s silence—as tantamount to a message that they are not welcome on campus. One can’t imagine any level of tolerance for this sort of speech addressed to women, racial minorities, or LGBTQ people. But it was tolerated when directed at Jews—and Palestinian supporters will say the same.
Some of the more extreme speech this past school year is reasonably understood as a form of intimidation or advocacy of genocide. For example, students chanting “From the river to the sea, Palestine will be free” or proclaiming “Zionists are not welcome in this dorm.” Is the principle that the answer for bad speech is more good speech sufficient?
What is the interplay between freedom of speech and civil rights law? The U.S. Department of Education, charged with enforcing Title VI in the university setting, has vacillated on the issue, once suggesting that civil rights obligations would prevail as a compelling interest. It later indicated that while the First Amendment protects obnoxious speech creating a hostile environment, it does not bar universities from condemning that speech to dispel a hostile environment. Whether colleges would succeed in doing so with a mere statement might be doubted, but it may be the best available alternative.
As of now, there is no case law on the subject. The Department of Education has been content to focus on procedural shortcomings—failure to investigate or respond to complaints. It has not responded to the complex legal issue of a clash between freedom of speech and anti-discrimination rules. Decades ago, courts uniformly struck college hate speech codes—which more or less have tracked hostile environment law—but it is not certain that the same result would follow today.
Courts are split, for example, on whether teachers and students can be forced to use others’ preferred pronouns, even where they find them objectionable. Similarly, many courts have allowed K–12 schools to ban speech critical of LGBTQ people without requiring similar bans for pro-LBGTQ speech students.
Every great social struggle of the last century—from secularism to civil rights to LGBTQ rights—has changed the parameters of free speech law. The same is likely here, but only time will tell how.
With the arrests following campus disruption and, in some cases, blocking public roads (e.g., the Golden Gate Bridge), there have been few criminal prosecutions. Undoubtedly, some failures to prosecute are a product of the usual evidentiary lapses accompanying mass arrests.
But many prosecutors, particularly so-called progressive prosecutors, believe that criminal prosecution is out of place when people are engaging in political speech, even if in ways that violate statutes or interfere with the rights of others, such as by shouting down a speaker.
In at least one case, a university president ordered campus police to do nothing when protesters shouted down an Israeli speaker. A district court held that those denied the right to hear the speaker had no claim against the university because government officials have no duty to defend citizens’ rights against violations by private parties. University professors have claimed it is wrong to criminalize civil disobedience, a claim tantamount to endorsing anarchy on behalf of true believers in any cause.
Prosecutors enjoy broad discretion about when to prosecute. The police enjoy similar discretion regarding arrests. Is the result tolerance for anarchy? Is there, or should there be, some practical legal remedy? Should a university president be permitted to tell police to stand idly by while a speaker is disrupted? Or can protesters block the roadways on major arteries with impunity supposedly conferred by the right of freedom of speech?
However, prosecutors also have broad discretion not to prosecute (e.g., shoplifting) throughout the criminal justice system. Is it wise to make protests an exception? Is there some middle ground?
