Free Speech Still Applies at Universities

My conundrum begins with the base concept that there is no such thing as hate speech according to the First Amendment. I believe something very different than the encampment protesters at Columbia. But I believe in defending their right to protest legally just as much. Makes for some uncomfortable times, but it’s the thought that counts.

There are no laws against “hate speech.” Some people have developed an alternate understanding of free speech, with students in particular believing “offensive” speech should not be protected, particularly when the offense is directed at groups defined by race, religion, ethnicity, gender, or sexual orientation. But the 1A says a speaker can call people names and insult them by their religion. What many people think and say is hateful. It is in fact carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is the point. Free speech means just that, with any limited restrictions content-neutral. So there’s nothing in the law per se preventing people from holding and/or shouting anti-Semitic views.

(BONUS: Much of what follows applies to Donald Trump’s own statements to the mob on January 6. His so-called inflammatory statements that morning are protected by much of the same law as the Gaza encampment people. It should make a college age ACLU donor proud to know her $25 contribution with Mom’s credit card helps the Gaza encampment people, Israel supporters, and Trump all at once.)

But what about when that anti-Semitism extends to calls to violence, horrible stuff like signs asking for counter-protesters to become Hamas’s next victims? Brandenburg v. Ohio precludes speech from being shut down as incitement to violence unless 1) the speech explicitly or implicitly encouraged the use of violence or lawless action; 2) the speaker intends that their speech will result in the use of violence or lawless action; and the important one, 3) imminent use of violence or lawless action is the likely result of the speech. (A hostile reaction from a crowd doesn’t count.)

A second type of speech excluded from First Amendment protection and often wrongly labeled hate speech are “fighting words”: speech that instantly “inflict[s] injury or tend to incite an immediate breach of the peace.” This must be directed at a specific individual; offensive speech to a crowd doesn’t count.

The upshot is that, apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather or sports.

But what about anti-Semitic speech such as “From the river to the sea [wipe out the Jews]?” Isn’t this the equivalent of that bit about “shouting ‘fire’ in a crowded theater”?

The Fire! line comes from the Supreme Court decision in Schenck v. United States and is often cited as justification for limiting free speech. Justice Oliver Wendell Holmes said “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately, a “clear and present danger.” This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans and real Nazis to march among Holocaust survivors, and—yeah—the “river to the sea” thing. None of this extends to trashing a building or blocking a public highway.

Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer to stop free speech, not to protect it. (The pamphleteer was determined to be a clear and present danger in wartime.) The case was eventually overturned. The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence.

But colleges and universities are not the government. Many are private institutions like X and Facebook that are not subject to the 1A. So shouldn’t they have the right to censor their students, the way X can censor tweets and Facebook block users?

Academic administrators like to rely on the idea of “time, place, and manner” in their restrictions on speech. But public funding invokes the First Amendment for schools, though obviously if a school exists that accepts zero public dollars, that’s another story. The legal argument extending the First Amendment to institutions accepting Federal funding is Rosenberger v. University of Virginia, where the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints.

Universities like Columbia, which accept pubic funds, are avoiding the 1A by claiming their protesting students are trespassing or violating school Codes of Ethics that specify time, place, and manner of protests. Whether the latter would stand up in court is an open question.

There is no legal or other justification for banning speech based on who it may offend or threaten; in fact, quite the opposite. Wendell Holmes declared a “marketplace of ideas”—all ideas, not just popular ones. Free speech is messy as hell, but it is our essential defense against fascism, whether from the left or the right.

Even in the week before finals.