I found this article from the Free Press extremely useful in understanding the nature and limits of free speech, something more important than ever in this period of protest. Is it “free speech” to shout antisemitic slogans? How about students interrupting classes with political harangues? Can you lose a job because you approve of Hamas’s butchery? The piece will answer these and other questions.
First, the bona fides of the author:
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.
Click the screenshot below to read. I’ll just give a list of the questions Shapiro answers, briefly summarize his response, and make a few comments of my own. Click to read for free. Excerpts from the piece are indented:
Conduct, like flag-burning, can fall under the rubric of free speech, but some conduct doesn’t:
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.
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.”. . . .
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. . . . .
What about the interruption of classes and speakers by protesters? Isn’t this just more speech that’s protected by the First Amendment?
. . .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.
This event, mentioned above and shown below, is not free speech (the disruption starts at 0:44; it’s a pro-Palestinian rant decrying Israeli “genocide”, followed by chanting. It may be legal if the professor allowed it to happen, which seems to be the case, but I wonder if students could protest this being allowed at all. After all, it did disrupt class.
This is a math class this morning at @MIT. This is the state of learning and ‘free speech’ at our top universities. It would not be happening without a failure leadership at MIT.
Imagine being a student who borrowed $250k to attend MIT or a professor who is trying to do… pic.twitter.com/w8C6Y6i3SU
— Bill Ackman (@BillAckman) November 10, 2023
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.
Also, professors don’t have the right to harangue in class, or talk at length about subjects other than the one being taught. You also cannot create a hostile class environment with your speech (Shapiro gives examples).
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.”
This is why MIT declined to punish the students who engaged in illegal protest activities (sitting in offices and so on). This, of course, empowers foreign students to do whatever they want, knowing that MIT will not discipline them.
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.
There are already lawsuits in progress by Jewish students against NYU for title VI violations, and seven other schools are being investigated by the feds. These include claims of both discrimination and harassment.
Is it legal to ban or suspend Students for Justice in Palestine from campus?
I would have answered “no,” but it has been banned from some universities, both on the grounds of repeatedly violating campus rules and for providing material support for terrorism [Hamas]” As Shapiro says:
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.
I wouldn’t support its banning here, though I think the organization is reprehensible. But if it is violating the law by supporting terrorism (I have no idea if that’s the case), then yes, I wouldn’t be opposed. But organizations simply supporting Palestine or calling for the elimination of Israel are exercising freedom of speech, and such groups should not be banned.
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?
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.
I was surprised to learn a while back that companies can hire anybody they want so long as the companies don’t engage in systematic discrimination based on race, religion, and so on. If you approve of Hamas’s activities, for example, which is why Harvard students decided to back off on their statement that Israel was responsible for the October 7 massacre, any law firm can say, “No, we don’t want people like you.” That’s not religious discrimination.
Readers are advised to read Shapiro’s piece, which I’ve condensed quite a bit, as there’s lots to learn about the present situation and what you can and cannot do legally. I should also add that nonprotected speech that could get you arrested, but is done peacefully for the sake of changing people’s minds, can still get you arrested, but it’s known as “civil disobedience.” Sometimes I approve of this: the most notable example involved peaceful demonstrations, such as sit-ins, marches and attempts to register to vote, which were illegal in the Jim Crow South, but whose violation eventually played a huge role in passing the Civil Rights acts of 1964 and 1965.
This would be a good piece to give entering students when colleges create orientation units about free speech, as all of them should be doing!
“… I wonder if students could protest this being allowed at all”
This is interesting – I don’t know Latin well enough, but :
Quis acclamatiet ipsos acclamates?
i.e. who will protest the protestors?
Quis acclamabit ipsos acclamantes?
Quis protestabitur ipsos protestantes?
I had a secret – I could not write Latin.
But now, thanks to an evolutionary biology website …
.. actually, it could make some sense, what with the binomials.
Thank you!
Salve!
This MIT math lecturer needs a role model like we had with (now late) French Lit Professor Gordon Ringgold at the College of William and Mary in the middle 1960’s. A WW2 vet, he brooked no foolishness and would have grabbed the protester by the scruff of the neck with one hand and rear belt loop with the other and escorted him up the risers and out the door, likely with a final brotherly shove onto the floor. I recall him having arrived at our classroom one day to find us all in the hallway in front of the classroom door as the grad student teaching a biology class that met before our French Lit class was still merrily lecturing along. When apprised of the situation, he swung open the classroom door, yelled at the grad student to get out and that the Dean of the Faculty would hear of this, finally throwing the grad student’s papers and books off the desk as the students ran for the door and cover. Rules were rules by golly….and guys did not even think about going to class unshaven.(1967)
I wonder if even the protestors were better back then…
Ahhhhh…., the romance…
(I’m nodding at Rousseau – romantic, I believe).
Can companies discriminate on political beliefs? I would have thought not.
They sure can. Unless “political belief” is specified as a protected ground against discrimination in state or provincial civil/human rights laws, a company can make a decision that it will not hire Lefties or people who put demanded pronouns on their resumés. Let the universities have them.
Whether it should discriminate on political belief depends on whether the discrimination would be good or bad for business. Eliminating talent just because of someone’s views on student debt forgiveness might not be sensible in an engineering firm. In a financial services company, someone in favour of debt forgiveness might expose the company to moral hazard. Hamas supporters should be ruled out peremptorily from everywhere as a physical danger to other employees and customers.
Could even discriminate on epistemology, I’d wonder…
I add my voice to Jerry’s in recommending a read and study of Shapiro’sTFP article. It is not short and requires some study. And I agree that it would form a good first draft for an introductory lecture on freedom of speech and expression, and further I would suggest that ALL members of the university community must participate and formally sign off that they completed the lecture. “ALL” includes students, faculty, and staff…after all UChicago’s dean on call for a protest a couple of weeks ago was an assistant director of housing, which I would think is a staff position. A sign off is important so that there is clear evidence that the miscreant knew the rules or certainly that the university made a reasonable effort to ensure that he did. And having the whole community be aware of this material helps make the university…well…a community.
Shapiro’s piece is excellent. Thank you for bringing it to our attention. I agree that everyone at today’s colleges and universities should read it. I would also recommend that Shapiro develop a more generic version that can be use for all time—one that is not specific to the current situation. It would be something that all colleges and universities could use in their orientation materials.
I really would think that most universities have a code of conduct which could be employed against such people.
They should not be arrested or tried unless they make more specific threats or break the law while protesting.
But they can be expelled and prohibited from entering campus.
If a bunch of students formed a university National Socialist club, and started wearing SA uniforms to class, I don’t suspect they would last very long, even if they neither held rallies nor issued public statements of any kind. The difference is that few if any college administrators or faculty support the NSDAP, while a great many either support Islamic revolution or at least generally approve of revolution from a Marxist standpoint.
On thing I have noticed is that lots of people these days believe that they can take actions during a protest that would normally be illegal. As if there is some sort of protest exclusion to the law.
As bad as all of this is, it is really interesting to me personally to see how far over to the dark side these folks will go. Even though I know that their Marxist views have subborned whatever liberal beliefs they started out with, it is amazing to watch feminists protest in favor of the raping and burning alive of young women. Certainly to me, they have lost any credibility as feminists if they support the rights of some women, depending on their heritage and class identity.
It will be interesting, in the aftermath, to see if they recognize this, or engage in any self reflection.
Shapiro’s essay is a suitable rebuttal to those students and administrators who violate the First Amendment while claiming that they’re exercising their First Amendment rights, but it will fall on the deaf ears of those who believe the First Amendment itself was instituted by the privileged for the purpose of oppressing the oppressed. This latter group apparently wants the concept of free speech eliminated and a system which privileges the formerly marginalized put in its place.
Of course, there’s a lot of overlap between the people who are “just engaging in Constitutional free speech” when they shout down speakers or surround Jews while chanting slogans and the people who do the same in order to burn down the entire corrupt system of Constitutional Democracy. There’s also overlap between those who believe they are fighting for a permanent end to Israeli colonialist oppression and those who think there’s no possibility of improvement which lasts.
Shapiro’s essay is quite awful in a few cases where he endorses repression. He says wearing a mask at a protest should result in a student being arrested and expelled. At an LA protest where a pro-Israel counterprotester was hit and killed, Shapiro says anyone who chanted anti-Israel slogans should be arrested for incitement. And while Shapiro says “pro-Hamas” professors can’t be fired for their views, he thinks they can be denied tenure or not hired for those views. Shapiro also says colleges should be sued for violating Title VI unless they ban employees from taking “ideological sides.” Shapiro’s essay is bad law, and a call for massive censorship.
Shapiro doesn’t say that a student should be arrested and expelled in one fell swoop for wearing a mask at a protest. He says wearing a mask at a protest is already illegal under state law (the easy part) and a student arrested by the police for being masked should be expelled by the university. That’s the hard part, agreed, but I don’t see why the university can’t expel people who are arrested by law enforcement for breaches of the peace. The state can’t put them in jail without a conviction but non-state entities can draw whatever conclusions they like from an arrest, or even any observed conduct that didn’t result in an arrest, and sanction them administratively according to some written standard of fairness.
A university campus is not a sanctuary for lawbreaking. It is a community of scholars. Wearing a mask is not necessary for expressing constitutionally or academically protected speech. Indeed, because of the intimidation of speech that masked thugs can exert, the university would be within its rights to expel any student who wore a mask to any meeting or event. This is a hangover from the pandemic. We aren’t entitled any more to assume that people walking around with their faces covered are up to no good. They might be just liberals.
It is not Shapiro’s business (nor is it the university’s) to tell the Los Angeles police how to enforce the criminal law of California. If the police think the crime of incitement was committed they can arrest the perpetrators and the DA’s office can prosecute them. This has nothing to do with academic freedom or censorship or the university at all. It is useful to teach incoming students that if you hit a man with a megaphone in front of a chanting mob and he dies, you can all end up in serious trouble with the police and the university will not let you hide behind academic freedom or the First Amendment.
(In Canada you can wear a mask to a lawful protest but not to what is or becomes an unlawful assembly or a riot.)
You may find it “useful” to “teach” students that they are collectively guilty for anything that happens at an event they attend if they are deemed to agree with the views of the attacker. But it violates the First Amendment and every tenet of free speech and justice that we should uphold. If I applaud a speaker who says, “Hamas are murderers and they should die,” should I be arrested and expelled if some idiot attacks a pro-Palestinian protester?
If you are arrested you can argue your case. My understanding is that First Amendment rights are zealously protected in the United States and the exceptions have been narrowed, not expanded, over the years. Your specific concern about collective guilt* in your scenario is fully settled by case law and whether it was protected or not by 1A would depend on all the facts of that case brought to court. That protection has nothing to do with what is taught on university campuses. The university could just stay silent on the matter and let the students and courts figure it out for themselves when something goes south. Anyone who attends a demonstration should make himself aware of what the First Amendment protects, and what it doesn’t. If there is a gray area around what you intend to do, proceed at your own risk.
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* Inciters are not collectively guilty. They are individually guilty for what they did as part of a mob. The crime of incitement, like all crimes, has to be individually proven for each named person charged. Perhaps the chanters closest to the swinging megaphone and pointing at the victim, would be the ones charged with directly inciting the homicidal act; the ones at the far edge of crowd chanting along, probably not.
The university could, if it wanted to, expel the whole collective if it could identify what that collective was. If it was operatives speaking for the college chapter of the Society for the Prevention of Cruelty to Animals who trashed an animal care research facility, the university could expel the members of the SPCA and shut down the campus chapter if it wanted to. As with any administrative decision, it could be challenged in court.
You seem to be conflating the university’s policy on obstruction, intimidation, and disruption with legal protections of dissent and speech. The university can argue that your behaviour breaches its contract with you when you agreed to enroll, and can punish the breach with expulsion, just as you can be expelled from a stadium for hurling racial slurs at the athletes on the field even if you broke no law in doing so. It says so on the back of your ticket.