Where Free Speech Ends and Lawbreaking Begins

Even antisemites have the right to free speech, as Nadine Strossen and Pamela Paresky correctly wrote in The Free Press. Since the Hamas massacre of October 7, they have been taking full advantage of that right. Especially on college campuses.

Pro-Palestinian groups have harassed and even assaulted Jewish students; protesters have interrupted courses and taken over buildings; Ivy League professors have called Hamas’s attack “exhilarating” and “awesome”; students have torn down posters of missing Israeli children; others have chanted—and even projected onto university buildings—slogans, like “from the river to the sea,” “globalize the intifada,” and “glory to our martyrs.”

In response to such activities, universities have suspended or banned student groups like Students for Justice in Palestine. Alumni have pulled their donations and publicly stated that they won’t hire students who signed letters blaming Israel for the massacre. Republican lawmakers have suggested revoking the student visas of those participating in anti-Israel protests.

Those who care deeply about free speech are asking themselves many questions at this urgent moment: What should we make of the calls to punish Hamas apologists on campus? After all, this is America, where you have the right to say even the vilest things. Yes, many of the same students who on October 6 called for harsh punishment for “microaggressions” are now chanting for the elimination of the world’s only Jewish state. But Americans are entitled to be hypocrites. 

Don’t these students have the same right to chant Hamas slogans as the neo-Nazis did to march in 1977 in Skokie, Illinois—a town then inhabited by many Holocaust survivors?

I would put my free speech bona fides up against anyone. I’m also a lawyer and sometime law professor who recognizes that not all speech-related questions can be resolved by invoking the words First Amendment. 

Much of what we’ve witnessed on campuses over the past few weeks is not, in fact, speech, but conduct designed specifically to harass, intimidate, and terrorize Jews. Other examples involve disruptive speech that can properly be regulated by school rules. Opposing or taking action against such behavior in no way violates the core constitutional principle that the government can’t punish you for expressing your beliefs.

The question, as always, is where to draw the line, and who’s doing the line-drawing. 

Here are some of the most pressing questions those who care about civil liberties and protecting the rights of Jewish students are asking.

What are some examples of protest activities that are rightly considered conduct rather than speech? 

In drawing the line between speech and conduct, some cases are easy. 

Beating someone up, as has happened at Columbia and Tulane, is assault. Crowding around someone in a threatening manner, like a group of Harvard students—including an editor of the Harvard Law Review—did to an Israeli student who filmed their protest, is commonly known as the crime of “menacing.” A pattern of actions designed to frighten and harass someone, like forcing Jewish students into the Cooper Union library while pounding on the doors and windows, is stalking. Defacing someone’s property by spray-painting swastikas and slogans, as happened at American University, is vandalism. So is tearing down posters—at least on private property and in most campus settings. And masking at a protest, also a hallmark of events sponsored by the Students for Justice in Palestine organization, is illegal in many states—a remnant of the battle against KKK intimidation.

The proper response to such behavior, regardless of how “expressive” someone may claim it to be, is the same response we’d have to instances of assault, stalking, intimidation, and other crimes in any other context: identify, arrest, and prosecute the perpetrators. And in the campus setting, expel them. 

Are genocidal slogans like “globalize the intifada” or “from the river to the sea” protected by the First Amendment? 

It depends on the context.

First, a clear-cut case: the Cornell student who posted death threats online to Jewish students was rightly arrested, because, as the Supreme Court held, the Constitution doesn’t protect “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 

In addition to such “true threats” (and not simply political hyperbole), the First Amendment does not protect the incitement of violence, which the Supreme Court has defined as speech that is “directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” The courts have set a high bar on meeting this standard—but it’s surely been reached in some recent cases both on and off-campus.

Take, for example, the pro-Palestine rally in Los Angeles, where, in the course of the event, a 69-year-old man holding an Israeli flag was struck and killed. Assuming eliminationist or other violent slogans were chanted there, it would be hard to imagine a more direct connection between those chants and actual violence. 

But a group of students marching through campus cheering for Hamas is no different than a group of students celebrating the killing of innocent black people. Though we can imagine how different the campus response to the latter would be, from a First Amendment perspective, both are protected.

Wait, but isn’t shouting antisemitic epithets hate speech?

Offensive or “hate” speech is constitutionally protected—including burning a flag or giving a racially charged speech to a restless crowd.

But even undeniably protected speech can be off-limits in certain contexts. If I come to your neighborhood in the middle of the night and use a bullhorn to tell you what I really think of Joe Biden or Donald Trump, I can be arrested for disturbing the peace. The same thing goes for breaching the terms of a parade permit, or not getting a permit at all and blocking traffic.

So for any particular incident, you have to drill down on the specific facts. Engaging in what someone—even most people—would consider “hate speech” won’t get you in trouble. But doing so outside Jewish students’ dorms at midnight, or following Israeli students around to yell at them, will land you in hot water.

What about the interruption of classes and speakers by protesters? Isn’t this just more speech that’s protected by the First Amendment?

In the campus context, we’ve learned in the last couple of years—some of us quite personally—that there’s a difference between protest and disruption. Student handbooks typically spell out that it’s generally fine to hold signs, wear t-shirts, give out pamphlets, organize counter-events, and otherwise show displeasure with a speaker. But students aren’t allowed to shut down events, disrupt classes, or otherwise interfere with university programs. 

The week before Thanksgiving, Josh Hammer’s speech at the University of Michigan was disrupted by anti-Israel protesters (Hammer is Jewish). Meantime, a student at MIT commandeered a math lecture to protest what he called the “ongoing genocide of Gaza.”

It’s in no way a free speech violation to prohibit students from shouting down professors and speakers. To allow such disruption would be to empower a “heckler’s veto,” which is merely another form of censorship. But because of either ideological affinity or administrative weakness—and maybe even a misunderstanding of free speech principles—university officials have been hesitant to discipline students for this sort of behavior. Which is why it continues. 

As Yascha Mounk, a liberal fed up with campus illiberalism, explained in a pithy X thread, “part of protecting free speech is to punish students who violate the rules that make free speech possible for everyone else. This includes punishing those who violently disrupt talks—and it also includes punishing those who tear down fliers depicting children kidnapped by Hamas. The answer to this moment isn’t to give up on a culture of free speech on campus. It’s to enforce the rules that sustain it in an impartial manner.”

Relatedly, students at Columbia, Harvard, Northwestern, and other schools have taken over buildings, threatening to stay until their oft-nebulous demands are met. This conduct, again, is not protected by the First Amendment. The students should be removed and disciplined—up to and including arrest for trespassing—not fed burritos, as they were at Harvard.

There have been reports at many campuses of professors celebrating Hamas’s massacre. Is this acceptable speech?

Professors have the same free speech rights as anyone else, but HR manuals correctly admonish faculty and administrators not to create hostile educational environments. 

So the Stanford lecturer who asked Jewish students to leave their belongings and go to the back of the room was rightfully removed from teaching while the school looked into this incident. But Columbia professor Joseph Massad can write, as he did on October 8, that Hamas’s actions were “awesome.” The question of whether someone like that should be hired in the first place, or granted tenure, is different—but he can’t be punished for such “extramural” speech. 

Many of the students who participated in the protests at MIT and elsewhere are foreign nationals. What are their free speech rights as noncitizens? 

Although foreigners can’t be punished for speech any more than citizens, there can be repercussions for affiliating with certain groups or calling for violence. The Immigration and Nationality Act allows the denial or revocation of a visa of “any alien who. . . endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” 

Although the Biden administration is surely loath to deport foreign students, it’s hard to argue against the idea that at least some of those rallying around hang glider logos to show support for Hamas meet that visa-revocation standard. Indeed, the State Department confirmed to Senator Marco Rubio (R-FL) that it can revoke the visas of Hamas supporters.

But MIT declined to take action against demonstrators who prevented Jewish students from attending class, despite warnings that they were violating university policies, precisely because officials knew that many of the harassers were foreign students subject to deportation. The school’s refusal to do so effectively gives foreigners—but not Americans—the right to harass, intimidate, and vandalize. Such appeasement of antisemitism opens the university to claims under the Civil Rights Act of 1964, which brings us to the next question. 

What if an institution knows that Jewish students are being threatened and does nothing, or creates impotent task forces without addressing immediate threats? Or what if officials take ideological sides (like an administrator at the University of Chicago who marched with SJP protesters) or egg on a mob shouting down a speaker (like Stanford Law’s DEI dean at Judge Kyle Duncan’s event in March)? 

This is where Title VI of the Civil Rights Act comes in.

Title VI prohibits any entity that receives federal money (including student loans) from discriminating on the basis of race, color, or national origin, which the Department of Education’s Office for Civil Rights (OCR) understands to include “actual or perceived” ancestry, ethnicity, and religion. 

As part of the launch last May of the Biden administration’s national strategy on antisemitism, OCR issued guidance to remind K–12 and higher-ed schools of their legal obligation under Title VI to address complaints of discrimination, including harassment, based on Jewish ancestry. “The Department’s most important tool to fight against antisemitism,” Secretary of Education Miguel Cardona reiterated this month, “is Title VI.”

So the legal landscape is ripe for both administrative complaints and lawsuits alleging that all these hand-wringing academic grandees have failed to address the very real threats to the physical safety of Jewish students. At Cooper Union, a staffer locked Jewish students in the library for their own protection in the face of demonstrators shouting, “Free, free Palestine.” I’m not sure offering Jews a chance to hide in the attic satisfies Title VI.

Apparently the Department of Education feels similarly: it recently announced Title VI investigations into Cooper Union and six other schools, including Columbia, Cornell, and Penn. 

Jewish students are also planning lawsuits: three NYU juniors have already sued their university, asserting a variety of federal and state claims, including Title VI and breach of contract (not enforcing NYU’s own discrimination and student-conduct policies). 

Is it legal to ban or suspend Students for Justice in Palestine from campus? 

SJP is the most prominent anti-Israel—many would say anti-Jewish—organization on college campuses, with hundreds of chapters across the United States and Canada. Immediately following the October 7 attack, its national organization exulted in the atrocities as a “historic win for the Palestinian resistance,” and created a toolkit for its chapters to use on their individual campuses. Since then, SJP has organized countless events at which its members and supporters have celebrated Hamas and called for the elimination of Israel.

Some schools have had enough. 

Earlier this month, Brandeis University withdrew recognition of SJP as a student organization. In an op-ed in The Boston Globe, Ronald Liebowitz, president of Brandeis, wrote: “Specifically, chants and social media posts calling for violence against Jews or the annihilation of the state of Israel must not be tolerated.” 

Such speech is SJP’s specialty. Notwithstanding Brandeis’s robust free speech policy, Liebowitz explained that the school was exercising its right to “restrict expression. . . that constitutes a genuine threat or harassment” or that “is otherwise directly incompatible with the functioning of the university.” Other private universities followed suit: Columbia and George Washington University both suspended their SJP chapters for violating basic school rules. 

Notably, the Florida public university system also initially ordered the deactivation of SJP chapters, at the behest of Governor Ron DeSantis. (Full disclosure: DeSantis recently appointed me to the board of trustees of Florida Polytechnic University, where there’s no SJP chapter.)

The system’s chancellor, Ray Rodrigues, citing the National SJP’s alleged ties to Hamas, wrote to university presidents, “It is a felony under Florida law to ‘knowingly provide material support. . . to a designated foreign terrorist organization.’ ” 

He recently walked back the decision to ban the chapters, at least temporarily, after two schools raised concerns about potential personal liability for officials who executed the orders. Rodrigues further announced that he’d be seeking assurances from the chapters that “they reject violence. That they reject they are a part of the Hamas movement. And that they will follow the law.”

Those conditions are key to the legality of any action by a public university against SJP. Although government actors can’t force student groups to renounce a particular ideology or otherwise express views they don’t actually hold, the phrase “material support for terrorism” reflects both state and federal criminal codes and may provide an avenue for other schools to curtail SJP activities. The question comes down to the nature of the ties among Hamas, the national SJP group, and its chapters. 

The Supreme Court has ruled that the government may prohibit even nonviolent “material support” for terrorism, including “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.” So if a state can establish that SJP is in effect acting as Hamas’s PR agency on campuses, governors would be in the clear to stop taxpayer support. As with cases of “true threats” and “incitement,” the devil is in the details, so it’s heartening that public officials like Virginia Attorney General Jason Miyares are launching investigations of assorted nonprofit organizations with potential terrorist ties.

Some prominent alumni have suggested that businesses not hire students who have joined statements in favor of Hamas. Isn’t that participating in cancel culture?

A dozen CEOs pledged not to hire the Harvard students who signed an open letter blaming Israel for the attack on itself. Independent journalists have taken to publicizing the names of students who engage in antisemitic speech and behavior. Law firm Winston & Strawn rescinded its offer to NYU Law’s student body president, who sent a campus-wide anti-Israel statement—and then later was caught on camera tearing down posters of kidnapped Israelis.

I don’t think that any of this qualifies as cancel culture, at least if one defines that term as (1) forming a mob (2) to seek to get someone fired or disproportionately punished (3) for statements within the societally permissible range of policy views. 

Perhaps some people think it’s permissible—even understandable—to support Hamas. But I can hardly blame a law firm or Fortune 500 company for not wanting to associate with someone who celebrates gang-rape, mutilation, kidnapping, and live incineration, any more than I can blame them for not wanting to hire someone who yells at a federal judge “We hope your daughters get raped,” as Stanford law students did.     

“I am a 70-year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks.” That’s how Erwin Chemerinsky, the dean of UC Berkeley School of Law, described recent events on campus. Some of us were less surprised given the anti-Israel, anti-American, and generally anti-Western ideology that has taken root in higher education. Still, the extent and breadth of it has alarmed even the most pessimistic among us.

We shouldn’t weaken speech protections, which have made America not only the freest country in the world, but the most tolerant. But sometimes “speech” isn’t speech. Sometimes it rises to the level of conduct that prevents others from being able to live their lives. Right now we need people to discern the difference. 

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and the forthcoming Canceling Justice: The Illiberal Takeover of Legal Education (HarperCollins). He also writes the Shapiro’s Gavel newsletter on Substack.

For another view, read Choose Counterspeech Over Cancel Culture by Nadine Strossen and Pamela Paresky in Time. And let us know what you think in the comments.

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