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Campus speech wars rage

IN THE NEWS | Clashes over pro-Palestinian protests highlight the pitfalls of policing student speech

Demonstrators rally at a “All Out for Gaza” protest at Columbia University in New York City on Nov. 15. Bryan R. Smith/AFP/Getty Images

Campus speech wars rage
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Syracuse University Vice President Rob Hradsky remained calm as he confronted pro-Palestinian students in the atrium of Schine Student Center on Dec. 14. The administrator told a student she must remove a sign attached to her computer that read, “Globalize the intifada.” Many students gathered at the atrium to study for final exams were displaying the slogan as a form of protest.

The student refused Hradsky’s order, and video of the heated exchange that followed went viral. “We’re concerned about the word ‘intifada,’” Hradsky could be heard saying, as students interrupted and demanded to know why.

The incident was part of the brewing fight over campus free speech that’s reached all the way to Congress.

On Dec. 9, University of Pennsylvania President M. Elizabeth Magill, along with university board chairman Scott Bok, resigned after pressure from irate alumni, donors, and politicians. Magill testified before Congress four days earlier, waffling on whether student calls for genocide of the Jews constituted harassment and violated Penn’s code of conduct.

Two other presidents of elite universities—Harvard’s Claudine Gay and MIT’s Sally Kornbluth—gave lawmakers similarly evasive answers. In a rare bipartisan vote, lawmakers on Dec. 13 condemned all three presidents’ testimonies.

Already the Education Department had begun investigating colleges and universities over claims of harassment and discrimination, mostly directed against Jews, but also against Muslims. The department added 15 cases in December alone, including the University of Illinois Chicago on Dec. 19.

Syracuse, where Hradsky had his run-in with students, considers intifada to mean “advocating for genocide, which is harassment and a violation of University policy.” In Arabic, the word translates as “shaking off” or “uprising.” But the American Jewish Committee says pro-Palestinian activists use the slogan “Globalize the Intifada” to call for “aggressive resistance against Israel” and its supporters.

The Syracuse confrontation was just the latest example of conflict between protesters and schools that are working out how to police speech on their campuses. Incidents of aggressive protests—or outright anti-­Semitism—have escalated across the United States since Hamas attacked Israel on Oct. 7. On school campuses, such confrontations are provoking tough questions about the bounds of free speech at public and private institutions.

Since the Hamas attack, pro-­Palestinian demonstrators at Penn have sprayed graffiti calling for intifada and declaring “[expletive] the [Israel Defense Forces].” They have projected anti-Semitic messages onto campus buildings, sent hateful emails to the school’s Jewish community, and threatened violence against Jews.

One particularly contentious slogan is the phrase “From the river to the sea, Palestine will be free,” sometimes chanted by Palestinian supporters. The Anti-Defamation League says the ­slogan has “long been used by anti-­Israel voices … which seek Israel’s destruction through violent means.”

University of Pennsylvania President Liz Magill testifies during a House Education and Workforce Committee Hearing at the U.S. Capitol.

University of Pennsylvania President Liz Magill testifies during a House Education and Workforce Committee Hearing at the U.S. Capitol. Graeme Sloan/Sipa USA/AP

But even if a slogan is hostile or hateful, that doesn’t necessarily make it illegal: The First Amendment protects much public speech in the United States—even reprehensible speech.

Constitutional law expert Brad Jacob of Regent University explains that a 1969 Supreme Court ruling ­provided a precedent—now called the Brandenburg test—for deciding when speech loses its First Amendment protection: If speech is directed to inciting or producing imminent lawless action that’s likely to succeed, that speech is not protected.

When circumstances aren’t clear—for instance, when trying to determine if calls for genocide or anti-Semitic chants are inciting imminent harm—the case would require an investigation to determine the larger context. It might ultimately require a jury trial that would apply the Brandenburg test. Experts say repeated discriminatory harassment targeted at an individual can also be unprotected speech.

The three college presidents referenced these principles in their congressional testimonies. Unlike public institutions, though, private ones—like Harvard, Penn, and MIT—are not required to follow the First Amendment. They can generally set any speech ­policies they choose.

The problem, says Jacob, is that such universities often don’t apply free speech principles consistently.

“If you stand up at one of these universities and say, ‘I think homosexual conduct is sinful,’ you’d get shut down, even though you’re not advocating hurting anyone,” he says. Jacob points out that those same universities are now invoking the First Amendment, claiming they can’t stop people from advocating genocide.

Zach Greenberg, a First Amend­ment attorney at the Foundation for Individual Rights and Expression (FIRE), agrees: “Students would never be allowed to say whites should kill all the blacks on campus, but apparently, it’s totally OK to say kill all the Jews.”

To avoid these scenarios, Greenberg recommends universities nix selective speech policies and simply follow the First Amendment.

Still, New York Gov. Kathy Hochul sent a Dec. 9 letter to New York college and university presidents that set off alarm bells for free speech advocates. Hochul warned that school administrators who failed to discipline students for “calling for the genocide of any group of people” would be violating state and federal law. She promised “aggressive enforcement” against any institution that doesn’t prohibit and punish such speech.

Students would never be allowed to say whites should kill all the blacks on campus, but apparently, it’s totally OK to say kill all the Jews.

FIRE says Hochul’s warning doesn’t conform to the First Amendment. The group has asked her to withdraw the letter.

Greenberg says schools can both protect students’ freedom of expression and address discriminatory harassment: FIRE commends the 2015 “Chicago Statement” that outlines a set of voluntary, neutral limits on free speech on campus.

Meanwhile, debates will continue to rage. In October, the Edina, Minn., school district gave two students a three-day suspension for chanting the “river to the sea” slogan at their high school—where First Amendment ­principles govern.

At a Dec. 11 Edina School Board meeting, protesters waving Palestinian flags or wearing kaffiyehs claimed the district violated the students’ free speech rights. “Shame! Shame! Free Palestine!” they shouted, prompting the board members to walk out. One protest sign outside the meeting room said, “[Expletive] Israel. (IS-NOT-REAL).”

One Jewish resident of Edina who viewed the meeting online said all the hostility made her fear for her safety. (She asked that her name not be used for that reason.)

“If this is happening at my local school board meeting,” she wondered, “where can we feel safe?”


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