In an excellent column, David French provides a sound and easily understood description of three areas of law at particular issue on campus in the current iteration of the culture wars. One issue involves free speech.
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.”
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.
The point here is that absent “true threats,” the call for imminent lawlessness that would likely incite such action, speech is protected, no matter how reprehensible. Indeed, the more reprehensible, the more it needs the protection of the First Amendment. Few want to silence speech they like.
As for tearing down posters, French provides the answer.
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.
And, as French notes, colleges in particular seem to need to be constantly reminded of this.
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.”
In contrast, another op-ed appears in the New York Times by three students, one from Harvard, one from Brown and one from my old school, ILR, at Cornell, purporting to inform readers “not to confuse violent threats on campus with free speech.”
Are these violent threats?
This most recent wave of hate began with prejudiced comments obscured by seemingly righteous language. Following the Oct. 7 attacks, more than 30 student groups at Harvard signed on to a statement that read: “We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.” There was no mention of Hamas. The university issued such a tepid response, it almost felt like an invitation.
Days later, at a pro-Palestine rally, the Cornell associate professor Russell Rickford said he was “exhilarated” by Hamas’s terror attack. (He later apologized and was granted a leave of absence.) In an article, a Columbia professor, Joseph Massad, seemed to relish the “awesome” scenes of “Palestinian resistance fighters” storming into Israel. Most recently, over 100 Columbia and Barnard professors signed a letter defending students who blamed Israel for Hamas’s attacks. To the best of our knowledge, none of these professors have received meaningful discipline, much less dismissal. Another green light.
What about these?
Over these last few weeks, dozens of anti-Israel protests have been hosted on or near college campuses. Many of these demonstrations had threatening features: Masked students have chanted slogans such as, “From the river to the sea, Palestine will be free,” which many view as a call for the destruction of Israel. Others have shouted, “There is only one solution, Intifada revolution.”
On at least one occasion, these student protests have even interrupted candlelight vigils for the victims of Oct. 7. And they haven’t been condemned by the leadership at enough universities.
The pain these students feel as a result of this repugnant speech is understandable, but their pain doesn’t convert ugly speech into unprotected speech despite their effort to wrap it in the empty rhetoric of religion and ethics.
All students have sacred rights to hold events, teach-ins and protests. And university faculty members must present arguments that make students uncomfortable. University campuses are unique hubs of intellectual discovery and debate, designed to teach students how to act within a free society. But free inquiry is not possible in an environment of intimidation. Harassment and intimidation fly in the face of the purpose of a university.
Are these “sacred” rights, as long as don’t hurt anyone’s feelings?
The codes of ethics of universities across the country condemn intimidation and hold students and faculty to standards of dignity and respect for others.
No such universal “codes of ethics” exist, as each university enacts its own regulations for which it is legally responsible to the extent it isn’t merely empty rhetoric. And what does “standards of dignity and respect for others” mean? It’s the sort of vapid palliative speech that enables the grievance of anything that makes a student feel offended.
Like these three students, I share their view that much of what’s happening on campus is reprehensible, and that it deserves condemnation by university admins, faculty and students. But that doesn’t mean it’s not free speech, no matter how disgusting it may be. Yet, the campus understanding of free speech conforms far more with the gibberish of these three students than David French, even though French is correct and these students have full hearts and empty minds.
Why the New York Times sought to juxtapose these op-eds is hard to explain, but the ignorance about First Amendment protected speech is not the equivalent of accurate legal descriptions no matter how passionately students want it to be.