These are times that try our commitment to the Bill of Rights. Grief, rage and fear are radiating outward from the Middle East and tearing at the fabric of our own liberal democracy, especially on college campuses. The stories are already legion. Activists have ripped down posters of kidnapped Israeli women and children. The chancellor of the State University System of Florida ordered the deactivation of two campus chapters of Students for Justice in Palestine. At Cooper Union in New York City, Jewish students sheltered inside the library while pro-Palestinian protesters pounded on the doors. And in Ithaca, N.Y., a Cornell University student was arrested after publishing vile threats against the school’s Jewish community.
That’s the tip of an iceberg of campus controversy, and I can’t help noticing that the intensity of the conflict is magnified by both legal ignorance and reckless disregard for longstanding legal precedents. Just as there are international rules that apply to shooting wars, there are constitutional rules that apply to our nation’s culture wars, and applying those rules properly is one way that a continent-size, multifaith, multicultural society peacefully perseveres through profound division.
To understand the constitutional rules of culture war, you have to understand that the goals of American law are to render Americans both free and safe but not necessarily comfortable. As the Supreme Court put it in Island Trees School District v. Pico, a 1982 case dealing with a book-banning controversy in the midst of the Cold War, one of the reasons even young students enjoy freedom of speech is to prepare them for “active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”
So important is the marketplace of ideas on campus that the Supreme Court has repeatedly held that “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”
Note that the court said our “civilization,” not our “nation.” A nation called the United States of America can still exist even if it slides into authoritarianism, but our civilization is intended to be a rights-based liberal democracy, where people who possess diametrically opposed points of view cannot just survive but also thrive without compromising their most fundamental beliefs — so long as they don’t interfere with the rights of others.
This vision of both freedom and safety was powerfully articulated by President George Washington in his famous letter to the Hebrew congregation in Newport, R.I., in August 1790. He wrote to members of one of the world’s most persecuted religions and said, “all possess alike liberty of conscience and immunities of citizenship.” That’s a beautiful vision of American freedom. Yet there was also a vision of American safety. “May the Children of the Stock of Abraham,” Washington wrote, “who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
Of course, that’s a promise America has too often failed to keep, and not just for America’s Jewish community. But it’s a promise nonetheless, and it’s a promise that extends to Americans of every race and religion.
I started with the soaring rhetoric of democracy and pluralism for a reason. They represent the moral and philosophical foundations for the concrete constitutional rules of culture war that directly apply on campus. And if students, faculties and administrators knew these rules and followed these rules — rigorously and fairly — then our conflicts would be far more manageable and sustainable. If campuses refuse to follow these rules, then it places not just the colleges but also the culture under immense strain, and it wreaks havoc on the lives of the students themselves.
The goal of this newsletter is to write not a legal treatise but rather a legal primer. I want to share a few simple principles that are easy to explain but difficult to uphold in the face of extreme grief and rage.
The right to speak includes a right to offensive speech. This is a lesson that colleges have had to learn time and time again. The fact that any person finds my speech infuriating, insulting or even hateful does not grant the government the right to silence my voice. This is among the most basic principles of American free speech jurisprudence. As the Supreme Court held in a 1989 case called Texas v. Johnson, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
This is not a new concept. In 1949, when America was gripped by deep divisions and extreme fear over the emerging Cold War, the court held in Terminiello v. Chicago that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are or even stirs people to anger.”
Critically — and this might be counterintuitive — this right to engage in provocative speech can even include endorsing violence. For example, in a 1969 case, Watts v. United States, the Supreme Court reversed the conviction of a young man who publicly stated at an antiwar rally, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”
There are legal limits to endorsing violence, of course, but they’re narrowly and carefully drawn. In Brandenburg v. Ohio, another 1969 case that is one of the most famous in Supreme Court history, the court struck down an Ohio criminal syndicalism statute (such statutes proliferated in the early 20th century and were often aimed at Communists, union organizers, antiwar activists and others who were deemed dangerously radical) after the state used it to prosecute a man who appeared at a Klan rally that included armed, hooded men and a burning cross.
The state could prosecute his words, the court held, only if they were “directed to inciting or producing imminent lawless action” and were “likely to incite or produce such action.” Quoting a prior case, the court distinguished between the “abstract teaching” of “the moral propriety or even moral necessity for a resort to force and violence” from “preparing a group for violent action and steeling it to such action.”
Under this construct, public support for Hamas — or public support for carpet bombing Gaza — is constitutionally protected, even if it’s gross and immoral, and public institutions that suppress such speech violate the First Amendment.
Florida’s decision to deactivate local chapters of Students for Justice in Palestine, for example, cannot be based on rhetorical support for a horrific terrorist attack. Florida claims that the student group’s words constitute “material support” for terrorism. But vocalizing support for heinous acts is not a crime. In fact, the group’s “tool kit” is a messaging document, and the actions it urges include handing out fliers, tabling (setting up tables on campus to hand out literature) and writing and signing statements. Deactivating a group on the basis of its expression — in the absence of evidence of genuine criminal activity — is a clear violation of the First Amendment.
The right to speak does not include a right to silence others. Putting up a poster is an act of protected speech. Tearing down that poster is not, even if the person destroying the poster is trying to make his or her own statement. Tearing down a poster is akin to shouting down a public speaker. Your protest cannot trump the speaker’s own right to free speech. The answer to a poster is another poster, not destroying the expression you hate, by tearing it down or defacing it any way.
In fact, many federal courts, including trial and appellate courts, have held that government entities have a responsibility to protect freedom of expression, even from hostile crowds. If the government systematically looks the other way as private citizens suppress the free speech of others, then the government can be liable for its failure to protect free expression.
One of the most powerful and compelling arguments for free speech in American history was born out of mob suppression. In 1860, Frederick Douglass wrote his “Plea for Free Speech in Boston” after a violent mob shut down an antislavery event. “To suppress free speech is a double wrong,” Douglass wrote. “It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”
Exactly so. Public universities can and should take action against members of the community who tear down posters or shout down speakers, and if they fail to protect free expression, then they may be held liable. Mob censorship isn’t free speech.
The right to speak does not include a right to harass. This last concept is perhaps the most difficult to understand and apply consistently. The right to speak, as I said, absolutely includes a right to offend. The government cannot silence your speech simply because it makes people angry or upset.
At the same time, Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of “race, color or national origin” in programs that receive federal funds. The Biden administration has made it abundantly clear that this prohibition of harassment includes protections against antisemitism, including antisemitic harassment.
What is unlawful harassment, and how is it different from protected speech? The best definition in the educational context comes from a 1999 case, Davis v. Monroe County Board of Education. The court held that a student can sue a school under federal civil rights laws prohibiting sex discrimination if it fails to prevent peer harassment or student-on-student harassment, but the student has to “show harassment that is so severe, pervasive and objectively offensive and that so undermines and detracts from the victims’ educational experience that the victims are effectively denied equal access to an institution’s resources and opportunities.”
This is a strict standard but certainly one that applies to threats and to acts of physical intimidation. If anti-harassment laws mean anything, they mean that students shouldn’t have to fear for their safety from fellow students simply because of their race, color or national origin. When student protesters bang on doors and intimidate students trapped inside a library, it raises concerns under Title VI. If a Jewish student is surrounded on the sidewalk, pushed and blocked from leaving by angry peers, it raises concerns under Title VI.
Critically, federal law does not permit schools to simply leave the dispute to the students. Yes, students can be held legally responsible for their own actions (like the Cornell student arrested after making violent threats), and students can sue other students, but schools are also legally responsible if they exhibit “deliberate indifference” to the plight of the harassed. Every college and university — public or private — that receives federal funds has an affirmative duty to protect students’ civil rights.
In the recent past, schools have sometimes been too enthusiastic about stopping harassment, defining the term so broadly that university anti-harassment policies actually violate students’ free speech rights. During my career litigating free speech cases, I won several lawsuits against schools that were so keen on stopping harassment that they suppressed even constitutionally protected speech, often on the grounds that “offensive” speech by itself violated student rights.
Properly applied, however, anti-harassment laws can protect the marketplace of ideas. Students cannot truly feel free if they are not safe, and anti-harassment laws are indispensable to protecting the safety of any campus community.
The three legal doctrines outlined above provide a simple framework for debate and dialogue. Taken together, they’re saying, “I can speak, you can speak, and we’re both safe.” They are not, however, a framework for comfort. Citizens in a pluralistic society should expect to feel angry. We should expect to be upset. Diverting that anger into words and not violence is how our society survives.
Free speech is a marvelous American value, but it is not utopian. Nothing about liberal democracy is utopian. The American experiment is in many ways based on the understanding that human beings both are fundamentally flawed and possess incalculable worth. Our flaws mean that utopia is impossible. Our worth requires any just government to protect our unalienable rights.
I’ve long appreciated the pseudonymous writer Scott Alexander’s description of liberalism: “People talk about ‘liberalism’ as if it’s just another word for capitalism or libertarianism or vague center-left-Democratic Clintonism,” he wrote on his Slate Star Codex blog. “Liberalism is none of these things. Liberalism is a technology for preventing civil war.”
He’s exactly correct. And as the Supreme Court has repeatedly observed, our nation’s educational system — and especially its college campuses — is the place where we learn liberalism. It’s the place where we are supposed to practice pluralism. Our system of government was built to accommodate conflict but only as long as that conflict is channeled through a Constitution that protects our liberty from the government and empowers that government to protect its citizens from one another.
Students are entitled to be free. They are entitled to be safe. But enduring hard words and hearing dreadful ideas isn’t just an inescapable element of pluralism; it’s also the price of peace itself. Break that system, and the conflagrations abroad will have violent echoes here at home. Trust that system, and we can manage the conflicts that tear other nations apart.