A print of artist Phil Hands’ cartoon on free speech hangs on the wall of my office, with a nice message from this incredibly talented person. I think this message matters now more than ever.
THE LEAD: Universities are pushing back on speech and assembly efforts in the wake of pro-Palestine protests on campuses throughout the country. Both on campuses and at the federal level, concerns regarding antisemitism and Islamophobia have led to inquires and crackdowns.
Zoom in: Tensions at Columbia bubbled over last week after university president Minouche Shafik called in the NYPD to disband a pro-Palestinian encampment at the center of campus.
- The University of Michigan said it would draft a new policy on punishable disruptive behavior following a pro-Palestinian protest at its convocation.
- The University of Southern California canceled its valedictorian’s commencement speech, citing safety concerns that the student called a “campaign of racist hatred.”
- Stanford University banned overnight camping in February to end an encampment populated by dueling pro-Palestinian and pro-Israeli tents, citing student safety, extreme weather and rodents.
FIRST-AMENDMENT BASICS: The First Amendment to the Constitution allows for freedom of expression in a number of ways, including speech, press and assembly. State actors (meaning public officials, public organizations or otherwise government-ish people or groups) cannot step in and deny these rights without some exceptional circumstances.
The law requires a risk of “imminent lawless action” or “clear and present danger” to exist for the government prohibit these kinds of expressions. Examples of this kind of risk include things like inciting a crowd to destroy property or chanting “We are going to kill the chancellor” during a march. That’s why yelling “Mike Pence is a traitor” isn’t the same as yelling “Hang Mike Pence” during the Jan. 6 incident in Washington, D.C.
In some cases, the law can allow for restrictions based on the time, place and manner of the expression, but it also states that the restrictions must be content neutral. In other words, if the mayor of your town refuses to allow a “Pro-Vegetable” march at 5 a.m. because it would be disruptive to the sleeping habits of the citizens, that mayor can’t then allow a “Pro-Beef” march to occur at 5 a.m.
For a more complete view, check out this great primer at the Freedom Forum.
KEY FREAKOUT POINT: This is what happens when the vaguely educated (Congress) asks questions of the overly educated (Ivy League university administrators) and fear is a driving force in the discussion.
Back in November, the presidents of Harvard University and the University of Pennsylvania resigned after they reacted to questions of campus antisemitism the way my dog does when I present her with a physics textbook.
Congress, trying to make a point, asked if “calling for the genocide of Jews” violated the campus speech codes and neither of these esteemed educators could find a coherent answer. (As these are both private institutions, they get more leeway about what can and can’t happen on their campus than do public institutions. More on that later.)
What happened next was what always happens next at a time like this: More administrators get called to answer similar questions under a totally disingenuous guise by people who have no interest other than “pwning” these folks.
Thus, to avoid being the next university egghead on the chopping block, these folks force everything 180-degrees in the opposite direction, to the point where saying “bless you” is somehow a hanging offense. Fear drives the silencing of certain voices that people worry might not be as popular as others. The goal is to “run clock” for a while, in hopes that everything will just calm down once the kids find a new TikTok challenge or something.
Words are scary, particularly when you are being accused of certain things. Nobody likes being accused of antisemitism, Islamophobia, homophobia, racism, sexism and other such things. Certain words carry with them a permanent stain, and that can be terrifying enough to make people do or not do certain things. I often think back to this clip from “Apt Pupil” in that regard:
REALITY CHECK: As much as it would be great if we could all just get along about everything, that’s not the way life works. This is why we have laws in place to deal with what can and can’t happen when people feel the need to disagree.
The law is clear on how speech and assembly work: Unless you can demonstrate that whatever these people are saying or wherever they are going will lead to lawless action, they have the right to say what they want to say and go where they want to go. The law isn’t here to protect popular speech, but ALL speech.
This is why, as much as it can infuriate folks that a group of Nazis can march through a predominantly Jewish part of Illinois, or that a group of “religious” folks can show up with signs at a military funeral proclaiming “Thank God for dead soldiers,” speech can’t be suppressed for being repulsive alone.
DOCTOR OF PAPER HOT TAKE: Everyone has a level at which they think a line should be drawn when it comes to speech being problematic, but quite literally, the cure for bad speech isn’t speech suppression. It’s MORE speech. It’s also been clear that there are always risks that unpopular speech may lead to violence, but we have laws to deal with that violence once it actually occurs. Stopping speech because it might end poorly has the same internal logic as the traffic cop who pulls over the Corvette driver because the car “looks like it could go fast.”
The administrators of these schools need to have stronger intestinal fortitude when it comes to supporting free speech, even if it’s going to be wildly unpopular or allow some senator from Bumbledirt, Wyoming to call them all sorts of names on the Senate floor.
Yes, it sucks when you have to deal with difficult situations, but standing for principles is supposed to be administrators’ resting pulse. If you think having people say mean stuff about you on Twitter/X is rough, read this piece by David Goldberger, a Jewish attorney who represented the Nazis in the Skokie case. Members of Jewish Defense League showed up at Goldberger’s office with baseball bats trying to beat the hell out of him. The rabbi at his parents’ synagogue gave a speech denouncing Goldberger personally for taking the case. He was threatened and called a self-loathing Jew for his troubles and yet in retrospect, he remains as stalwart in his beliefs as ever:
To this day, I have no doubt that the ACLU’s commitment to equal rights for all is a backbone of our democracy — no matter how offensive our clients are. Chipping away at this commitment will open the door to the erosion of the First Amendment as a bulwark against rule by tyrants.
In short, if you want your free speech, you have to be willing to stand up for everyone else’s speech as well.
A PROMISING POST-SCRIPT: As I was finishing this off, a friend forwarded this article about how student journalists on these campuses are not only covering the situation, but taking strong editorial stances in favor of free speech.
As we always say in student media, “Leave it to the kids to lead the way.”
