do we know what free speech actually is?

We seem to entertain an ongoing debate as to what speech is ok and what is not. Sometimes our advocacy or opposition is mostly a matter of personal preference. The Free Press’s Ilya Shapiro wrote an excellent piece this weekend defining the boundaries — where free speech ends and the lawbreaking begins. This has been especially obvious (albeit a more accurate word may be “glaring”) during the current Israeli/Hamas/Palestinian conflict. For purposes of encouraging us all on the same page going forward, no less, listen to some key distinctions in a truncated portion of Shapiro’s words :

“… Those who care deeply about free speech are asking themselves many questions at this urgent moment: What should we make of the calls to punish Hamas apologists on campus? After all, this is America, where you have the right to say even the vilest things. Yes, many of the same students who on October 6 called for harsh punishment for ‘microaggressions’ are now chanting for the elimination of the world’s only Jewish state. But Americans are entitled to be hypocrites. 

Don’t these students have the same right to chant Hamas slogans as the neo-Nazis did to march in 1977 in Skokie, Illinois—a town then inhabited by many Holocaust survivors?

I would put my free speech bona fides up against anyone. I’m also a lawyer and sometime law professor who recognizes that not all speech-related questions can be resolved by invoking the words First Amendment. 

Much of what we’ve witnessed on campuses over the past few weeks is not, in fact, speech, but conduct designed specifically to harass, intimidate, and terrorize Jews. Other examples involve disruptive speech that can properly be regulated by school rules. Opposing or taking action against such behavior in no way violates the core constitutional principle that the government can’t punish you for expressing your beliefs. The question, as always, is where to draw the line, and who’s doing the line-drawing. Here are some of the most pressing questions those who care about civil liberties and protecting the rights of Jewish students are asking.

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.

The proper response to such behavior, regardless of how ‘expressive’ someone may claim it to be, is the same response we’d have to instances of assault, stalking, intimidation, and other crimes in any other context: identify, arrest, and prosecute the perpetrators. And in the campus setting, expel them. 

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.’

In addition to such ‘true threats‘ (and not simply political hyperbole), the First Amendment does not protect the incitement of violence, which the Supreme Court has defined as speech that is “directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” The courts have set a high bar on meeting this standard—but it’s surely been reached in some recent cases both on and off-campus.

Take, for example, the pro-Palestine rally in Los Angeles, where, in the course of the event, a 69-year-old man holding an Israeli flag was struck and killed. Assuming eliminationist or other violent slogans were chanted there, it would be hard to imagine a more direct connection between those chants and actual violence. But a group of students marching through campus cheering for Hamas is no different than a group of students celebrating the killing of innocent black people. Though we can imagine how different the campus response to the latter would be, from a First Amendment perspective, both are protected.

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. If I come to your neighborhood in the middle of the night and use a bullhorn to tell you what I really think of Joe Biden or Donald Trump, I can be arrested for disturbing the peace. The same thing goes for breaching the terms of a parade permit, or not getting a permit at all and blocking traffic. So for any particular incident, you have to drill down on the specific facts. Engaging in what someone—even most people—would consider ‘hate speech’ won’t get you in trouble. But doing so outside Jewish students’ dorms at midnight, or following Israeli students around to yell at them, will land you in hot water.

What about the interruption of classes and speakers by protesters? Isn’t this just more speech that’s protected by the First Amendment?

In the campus context, we’ve learned in the last couple of years—some of us quite personally—that there’s a difference between protest and disruption. Student handbooks typically spell out that it’s generally fine to hold signs, wear t-shirts, give out pamphlets, organize counter-events, and otherwise show displeasure with a speaker. But 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. To allow such disruption would be to empower a ‘heckler’s veto,’ which is merely another form of censorship. But because of either ideological affinity or administrative weakness—and maybe even a misunderstanding of free speech principles—university officials have been hesitant to discipline students for this sort of behavior. Which is why it continues. 

As Yascha Mounk, a liberal fed up with campus illiberalism, explained in a pithy X thread, ‘part of protecting free speech is to punish students who violate the rules that make free speech possible for everyone else. This includes punishing those who violently disrupt talks—and it also includes punishing those who tear down fliers depicting children kidnapped by Hamas. The answer to this moment isn’t to give up on a culture of free speech on campus. It’s to enforce the rules that sustain it in an impartial manner’…”

Good to know. Good to learn. The discussion continues…