Free speech on campus isn’t absolute

Originally appeared at the Denver Gazette on May 2, 2024.

Fierce campus debates swirl around the Israel-Hamas war. One of them is a debate about the extent of free speech. Should there be restrictions on those protesting Israel’s military actions or its right to exist? Protesters’ voices vary, with some being pro-Palestinian and others pro-Hamas. Some are calling for a cease-fire, while others call for the end to the Jewish state. Freedom of speech is a precious right guaranteed in our Constitution’s First Amendment. The right to discuss, debate, inquire and even protest on a university campus should be cherished and protected. But are there limits?

When Columbia University President Minouche Shafik started clamping down on pro-Palestinian protesters, students, faculty and a university oversight panel criticized her, claiming that any restriction on protesters is a violation of free speech. About 30 faculty members from Harvard Law School criticized the administration there for “discriminatory enforcement of rules and viewpoint discrimination.” What are we to make of this? Who is right? I take a particular interest because of my role as a university chancellor.

When the three university presidents testified before Congress on Dec. 5, they defended their unwillingness to condemn calls for genocide on the basis of free speech. The problem is, these schools routinely limit free speech in their disciplinary policies when it comes to race or gender and sometimes conservative or traditional viewpoints. This double standard revealed that there is significant antisemitism at these elite universities. When Columbia’s president testified before Congress more recently and was asked if calls for genocide against Jews would violate campus policies, she responded differently, with a definitive “yes.”

Of course, private universities have a right to establish and enforce their policies. Columbia is a private university and has the right to set its rules on speech as part of the contract of studying at that school. Its code of conduct says that you have a right to demonstrate and to express your opinions. But you violate that code when you place another person in danger of bodily harm.

Columbia’s anti-Israel encampment and protests have advocated support for Hamas’ military actions, the end of the Jewish state, resistance by any means necessary, and the physical harassment of Jewish students.

Granted, not all protests cross this line. But when they do, is that a violation of the First Amendment? I am not an attorney or an expert in constitutional law. But it seems to me and many others that it does.

The freedom of speech guaranteed by the First Amendment is important, but it is not an absolute. There have to be limits. The Constitution was written within the context of the Declaration of Independence, which declares that “all men are endowed by their creator with certain unalienable rights.” Including the right to life. As Christians, we would state this as, people are made in the image of God. That dignity should be protected from the violent actions of others, including speech which threatens imminent, physical harm.

As I read the history of our First Amendment, it goes to great lengths to protect free speech, even when that speech advocates violence, but here is the important qualifier — so long as it does not cross the line and become incitement to lawless action. Then it becomes unprotected speech.

This is a narrow but important exception to protect people. Back in 1969, the Supreme Court defined incitement in Brandenburg vs. Ohio, when it said that the First Amendment even protects speech at a KKK rally. But then it added that speech loses First Amendment protection only if there is the threat of imminent lawless action. To be defined as imminent, that action must be targeted, repetitive and severe.

Now it seems to me that this is what is happening on some of our campuses. Lines have been crossed. The context of these threats is the long violent history of antisemitism, the recent barbarous attack by Hamas in Israel and the rise in antisemitic harassment and violence in the U.S., including on college campuses. Is it targeted? Yes, it is targeted at the Jews. Is it repetitive? Undeniably. Is it severe? If you don’t call what happened on Oct. 7 in Israel or the repeated bomb threats aimed at Jewish institutions across our nation severe, what do we call it?

That is why at CCU, we would not tolerate this kind of speech. Peaceful protests are fine. But breaking university rules and disrupting learning is another thing. Fierce debate is fine, but calling for genocide is another thing.

The other day Texas Gov. Greg Abbot rightly drew a line when he said that “antisemitism will not be tolerated in Texas. Period. Students joining in hate-filled antisemitic protests at any public college or university in Texas should be expelled.” He added that Texas stands with Israel and the Jewish community, and we must escalate our efforts to protect against antisemitism at Texas college and universities. Gov. Ron DeSantis said much the same thing about Florida universities.

They said this with howls of protest coming from the faculty lounge. But these governors spoke with clarity because they, too, recognize that while free speech is a wonderful privilege, it is not an absolute.

Categories: America, Antisemitism, Culture, Education, Politics | Comments

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