Defining Free Speech Down on Campus Anti-Israel protesters invoke a First Amendment they don’t understand.
Universities are supposed to be places where students and faculty can debate politics and other subjects without fear or censure. As the anti-Israel protests spread at Columbia, Yale, Harvard, New York University and elsewhere, however, progressives are claiming that any restriction on the protesters is a violation of free speech.
That isn’t true, and it’s important to understand why. Under its “state action doctrine,” the Supreme Court has ruled that the First Amendment applies to government actions toward citizens. It doesn’t apply to private citizens or institutions except in rare instances when they are acting as government agents.
As University of California, Berkeley law school dean and ardent liberal Erwin Chemerinsky explained recently to anti-Israel students who wanted to protest on his lawn, his property is “not a forum for free speech.”
As a private university, Columbia has the right to set its own rules on speech as part of a contract to teach or study at the school. It does so in a way that is consistent with a public institution’s obligations under the First Amendment. Here’s what Columbia’s Rules of University Conduct say about protests: “Every member of our community . . . retains the right to demonstrate, to rally, to picket, to circulate petitions and distribute ideas” and to “express opinions on any subject whatsoever, even when such expression invites controversy and sharp scrutiny.” The code of conduct protects speakers’ rights even when “ideas expressed might be thought offensive, immoral, disrespectful, or even dangerous.”
Sounds good. But Columbia’s code of conduct says a person violates the rules who “engages in conduct that places another in danger of bodily harm,” or “uses words that threaten bodily harm in a situation where there is clear and present danger of such bodily harm.”
Columbia’s anti-Israel encampment and protests have included physical intimidation of Jewish students and antisemitic declarations. In October 2023, 100 Columbia professors signed a letter defending students who had flooded the campus in support of Hamas’s “military action” on Oct. 7. Columbia has every right to restrict speech or actions that threaten other students.
Protesters also don’t have a “right” to assemble on school property to disrupt the functioning of the university or intimidate students on the way to class. Even at a public university, all these rules would constitute reasonable restrictions on the time, place and manner of speech.
This new progressive embrace of free speech rings especially hollow after years of student and faculty attempts to ban conservative speakers from campus and punish students for alleged micro-aggressions. Those who once claimed speech is violence now claim violence is speech. They don’t understand the Constitution any better than they understand the Middle East.
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Appeared in the April 24, 2024, print edition as ‘Defining Free Speech Down on Campus’.
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