Freedom of speech protects speech that is both loved and hated. The United States Supreme Court instructed in Terminiello v. Chicago (1949), “[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.”
But like all other rights, freedom of speech has limits. Evenhandedly applied reasonable time, place, and manner limits are acceptable, for example, when prohibiting picketing outside homes in a residential area at 3 a.m. in the morning or blocking pedestrian or vehicle traffic.
Viewpoint-based restrictions, however, are suspect, such as permitting protesting Hamas terrorism but forbidding protests against Israeli actions in Gaza. The Supreme Court set forth the standard between protected and unprotected speech in Brandenburg v. Ohio (1969): “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
On elite college campuses across the country, have protests crossed the imminent lawless action line of Brandenberg? Or have they violated reasonable time, place, and manner restrictions?
Take Columbia University. Tents and an encampment have trespassed on university property to protest an alleged Israeli genocide of Palestinian civilians in Gaza, a charge that is pending before the International Court of Justice. But why have the protestors been silent over the Chinese genocide of Uigurs or Myanmar’s genocide of the Rohingya? Does that skewed response betray anti-Semitism or other ulterior motives?
George Soros’s Open Society Foundation has funded many student leaders of the protests. As reported in the New York Post, Malak Afaneh of Berkeley, co-president of the Berkeley Law Students of Justice in Palestine, has spoken at numerous anti-Israel events. He took his anti-Israeli tirade, uninvited, to disrupt a dinner at the home of Dean Erwin Chemerinsky.
The protests call for a “third intifada” or “uprising,” a term that terrorist organizations in the Middle East use as synonymous with violent terrorism directed at Israel. The first intifada ran from 1987 to 1990 and the second from 2000 to 2005. Approximately 1,000 Israelis were killed in Palestinian terrorist attacks during the second—but is a third intifada imminently likely to unfold with Hamas decapitated in Gaza?
What about the “From the river to the sea, Palestine will be free” chants? The etymology is curious. It first surfaced in a 1977 campaign manifesto of Prime Minister Benjamin Netanyahu’s Likud Party: “Between the sea and Jordan, there will only be Israeli sovereignty.” But in the context of 2024 and fierce opposition to Israeli actions in Gaza, the chant might reasonably be interpreted as seeking the eradication of Israel—an objective not likely to succeed.
The Hezbollah terror flag was displayed at Princeton. A similar incident transpired in Manhattan amidst the burning of American flags, which the Supreme Court held is protected by the First Amendment in Texas v. Johnson (1989) and United States v. Eichman (1990).
Hezbollah’s leader Hassan Nasrallah has claimed his organization has 100,000 trained fighters. Hezbollah was responsible for the bombing of Marine barracks in Beirut in 1983 that killed 241 U.S. military personnel.
Individuals who openly advocate for membership in Hamas and maintain that “there is nothing wrong with being a fighter” in that terror organization also chanted “Death to America.” That confidence is wildly misplaced. It is a federal crime to provide material assistance to a foreign terrorist organization, including joining as a member.
At Yale, a Jewish student-journalist was stabbed in the eye with a Palestinian flag by a Palestinian protester, the crime of assault. Furthermore, incidents have been reported nationwide in which Jewish students are intentionally barred from accessing campus property, which is also a crime of false imprisonment or blocking a thoroughfare. The incidents would constitute hate crimes with proof that the victims were selected because they were Jewish.
A credible threat to kill a Jew is criminal. Creating a hostile education environment based on race or religion also violates Title VI of the Civil Rights Act. New York Governor Kathy Hochul tweeted, “Calls for genocide on college campuses violate New York’s Human Rights Law, Title VI of the Civil Rights Act, & SUNY’s Code of Conduct. We’re prepared to take enforcement action if colleges & universities are found not in compliance.”
The Supreme Court has held that Title VI creates an implied private right of action, enabling victims of racial or religious discrimination on campus to sue violators for damages or injunctive relief.
Hundreds of protestors have been arrested throughout American colleges and universities. The vast majority will receive a slap on the wrist and return to protest immediately. Private Title VI suits are necessary to deter and discover the ulterior motives and hidden funders of the anti-Israeli protests.
We need to strictly punish illegalities while protecting speech we hate, short of inciting imminent lawless violence that is likely to succeed. Freedom of expression is often cathartic and prevents violence. Students should be resilient to name-calling remembering the rhyme, “Sticks and stones may break my bones, but words will never hurt me.”