The American Campus Unrest: What Can Be Done?

For several days now, the world has been watching as protests against Israel’s actions in Gaza have resulted in clashes with counter-protesters, other campus community members, and police. American universities have dual responsibilities of protecting student and faculty free speech rights and fostering a campus climate free from discriminatory harassment. On many of our nation’s elite campuses, America is witnessing firsthand the difficulty of meeting both of those obligations when they are in tension. With passions running hot on all sides of the issue, many are wondering what can be done to restore normalcy on college campuses.  

Current conflict over student and faculty expression is currently centered around the war in Gaza. As a Jew, I am a strong supporter of Israel’s right to defend itself and want as little suffering amongst Palestinian civilians as possible in pursuit of that goal. At the same time, I’m also a fierce defender of everyone’s right to engage in free expression, regardless of whether the views expressed are counter to my own. Indeed, as the former head of the Foundation for Individual Rights and Expression’s government relations department, I have fought hard for the rights of Israel’s critics to express their views on college campuses, provided they, like everyone else, do so lawfully. (Since 1999, FIRE has been America’s premier defender of free speech on college campuses and in 2022, it expanded its mission to protect free speech of all in the United States.)

I’ve dedicated a majority of my career to defending free speech on college campuses and have advised countless lawmakers and universities on how to navigate this tightrope. I’m the principal author behind a majority of the 23 state laws protecting free speech on college campuses. I’ve also advised lawmakers across the country on how to best address anti-Semitism on college campuses. Here, I’ll explain the legal factors and give my advice on how we should proceed in a manner that respects everyone’s rights.

The Legal Landscape

At public colleges and universities, students and faculty enjoy robust free speech rights under the First Amendment. At private institutions the right to free speech stems from contract law. Institutions that promise free speech and academic freedom must honor those commitments or they may be liable for breach of contract. Schools must be consistent when regulating speech and must not discriminate against certain viewpoints because free speech either works for everyone or it works for no one.

It’s important to keep in mind that there is no hate speech exception to the First Amendment. This is important because what is deemed hateful is so subjective. If you—like me—support Israel, would you trust the organizers of the anti-Israel protests, or the politicians who support them, to define what speech is sufficiently hateful to justify banning it? Political power ebbs and flows and the Constitution does not prohibit speech on the basis of it being hateful precisely because empowering the government to crack down on speech it finds hateful is too powerful a cudgel to entrust to anyone. That said, the First Amendment is not absolute; there are some important limitations.

As an initial note, it’s important to remember that the First Amendment covers speech and expression. Violence is never protected by the First Amendment. Universities have an obligation to provide sufficient security to protect people from violence. Campus administrators must take a firm stance against acts of violence and must take quick action when acts of violence are committed on their campuses. Students and faculty must face campus disciplinary charges when they are accused of engaging in violence and accused parties must be afforded meaningful due process. Police should arrest those engaged in violent activity whether perpetrated by members of the university community or by guests. 

There are also narrow limits on certain kinds of speech. All of the following exceptions to the First Amendment are well established by the Supreme Court and schools should apply the Supreme Court standards faithfully and consistently. 

First, there is no right to incite imminent acts of lawlessness, to engage in true threats, to disrupt someone else’s event or the functioning of the institution, or to harass others. Though peaceful protests are protected and universities must allow them on their campuses, there is also no right to prevent others who disagree from accessing education resources or opportunities.

Applying those standards, students arguing that Israel is committing acts of genocide would typically be engaged in protected speech. Political speech—even political allegations many, like myself, find deeply offensive—constitute protected speech. But students hounding Jewish classmates for alleged complicity in Israel’s actions would likely cross into unprotected territory. Urging a worked up crowd to physically assault counterprotesters would be unprotected incitement. Threatening others with violence (when the threats are not hyperbolic) is unprotected. Preventing others from moving freely through public spaces, or from using school facilities, is similarly punishable. Protesters making human chains and declaring that dissenters are not welcome in their encampments are engaging in unprotected conduct, too. 

Second, institutions can maintain and enforce reasonable, time, place, and manner restrictions on expressive activities, provided those restrictions are content and viewpoint neutral, narrowly tailored to satisfy a significant institutional interest, and allow for ample alternative means of communication. 

What all that legal jargon means is that reasonable rules applied evenly to protesters regardless of the protesters’ topic or point of view are allowed assuming the rule matches the school’s expressed goal behind it. A classic example is that a school has a significant interest in ensuring that students can study effectively in the library. A rule forbidding protests from using amplified sound or protesting in large groups within 150 feet of the library would be lawful. But a rule only prohibiting anti-Zionists from using amplified sound fails because that forbids only a certain viewpoint. Similarly, a rule that forbids amplified sound and large gatherings seven blocks away from the library cannot possibly be justified by a need to protect students’ ability to study in that building. On the other hand, institutions can adopt rules forbidding activities that prevent classes and graduation ceremonies from proceeding.

Finally, engaging in civil disobedience has a long history of advancing movements, but there is a misconception that civil disobedience is protected conduct. It is not. When people engage in civil disobedience, such as occupying spaces they do not have a lawful right to occupy, they are not protected by the First Amendment. The decision to engage in civil disobedience is a personal decision about whether one believes in their cause enough to accept the penalty for their unlawfulness. But while civil disobedience may be punished, the penalties must be consistent, regardless of the points of view expressed, and must be proportional to the offense.

A Path Forward

As bleak as it may seem, there is a productive path forward.

First, colleges and universities should take a firm stance against violence that occurs on their campuses and take disciplinary action when there is evidence a student or faculty member has engaged in violence. 

Second, institutions should avoid relying on law enforcement to crack down on protesters, except as a last resort to prevent imminent violence or respond to it. Police involvement tends to escalate tensions and should be reserved for situations when it is necessary to protect the safety of others. Few people who have ever been arrested for engaging in protest will ever be open to the idea that they might be wrong on the merits of their arguments. The arrest calcifies their view that they are being unjustly silenced, even when the arrest is legally justified. Arrests can’t always be avoided, but they must be used only when other options have failed or when necessary to prevent violence. And it should go without saying that police should use as much restraint as possible when engaging with protesters. They should also protect protesters from violence when necessary. We must do everything reasonably possible to avoid violent clashes between law enforcement and students and faculty, and under no circumstances should police initiate any violence.

Third, institutions should review their policies to make sure they are consistent with their legal obligations. Policies should encourage students and faculty to express themselves in ways that are consistent with the First Amendment and should prohibit conduct that falls outside the protection of the First Amendment when such conduct would prevent others from enjoying equal access to the educational institutions. Institutions must never suppress protected speech and must not selectively enforce their rules based on viewpoint. 

Fourth, institutions should be proactive in teaching students and faculty about their free speech rights and the limitations of those rights. They should set the expectations clearly and stick with them. This includes consistently upholding the right to protest lawfully and initiating proportional discipline against anyone who is willing to engage in conduct that violates the rights of others in the community. 

Fifth, colleges and universities should be providing opportunities for students and faculty to engage each other thoughtfully on the difficult issues that divide us. By setting up channels for this kind of dialogue, with rules designed to foster productive engagement, the institutions create important pressure valves that demonstrate they are places where all points of view can be expressed. Dialogue is the best path forward, but it isn’t happening now.

Sixth, institutions should require students to attend class in person. Students have robust rights to protest when they are not in class, but the primary purpose of higher education is education. Holding classes as usual is a helpful step to restoring normalcy. 

Seventh, Congress must address anti-Semitism—and other forms of discrimination on the basis of religion—but it must do so with the rights of all students in mind. Recently, the House of Representatives passed the Anti-Semitism Awareness Act, a bill that seeks to define “anti-Semitism.” The bill is unconstitutional because it improperly restricts a great deal of protected speech. It should not be enacted. Another approach is necessary.

Congress is not powerless to help. Currently, religion is not a protected class under federal law for the purpose of combating discriminatory harassment. This should be remedied immediately. Further, institutions’ policies rarely accurately reflect the line where expression loses its protection because it is more akin to discriminatory conduct. The Supreme Court has set that line, and Congress should lock it into place by statute to refocus campus administrators on the distinction. 

Congress should provide grants to colleges to fund programs teaching students about the horrors of the Holocaust, as well as the world’s history of religious persecution against people of all faiths. It should also fund programs to teach students about the importance of free speech and how to more productively discuss and debate contentious issues. These approaches will give schools additional legal tools to use to combat anti-Semitism without infringing on free speech rights. This approach also addresses the cultural dynamics that are at play.

Closing Thoughts

America has the broadest protections for free speech in the world, and nowhere are those protections more important than on college campuses. That’s because colleges are where we teach people how to test their assumptions and rethink the world. But that process doesn’t work when speakers are so convinced of their righteousness that they no longer feel the need to listen.

Colleges and universities must be communities where students and faculty are free to debate the toughest issues of our time. If we want our society to flourish, campuses must be environments where no point of view is too taboo to discuss or debate. Protests should spark discussions, not seek to end them. We must teach our students that if they want to persuade, they must also be willing to listen. 

Lawful protests must be protected, even if the message makes many in the community uncomfortable. Whether a protest is lawful must be determined on a case-by-case basis. Yet, there have been too many instances where todays’ campus protests have veered into unprotected conduct. There are too many examples where protesters have rejected dialogue and turned instead to force. As a society we must reject mob rule. Might does not make right. 

We have an opportunity to take this moment of division and channel the passions and energies into something productive, by offering forums for protesters to make their best cases. We should engage protesters’ ideas—as we should engage all ideas with an open mind and critical eye. But campus presidents should be clear in voice and deed that they welcome all points of view, but will not allow their campuses to continue to devolve into environments where protesters deny access to an education to their adversaries. 

Congress also has a role to play. But to be constructive, it must avoid enacting unconstitutional legislation, like the Anti-Semitism Awareness Act. Instead, it should finally make religion a protected class for purposes of protecting students from discriminatory harassment and it should fund programs teaching students about the horrors of the Holocaust, as well as the world’s history of religious persecution against people of all faiths. It should also fund programs to teach students about the importance of free speech and better conflict resolution skills.

This moment calls for leadership. It requires campus leaders from all points of view to look beyond their substantive positions with the realization that if we lose our ability to discuss our differences, America becomes a nation where the right to free speech—and all other rights—depends entirely on one’s political strength. Democracies cannot function without protections for minority points of view. 

Censorship has never been an effective tool against prejudice. If we are to effectively combat the growing tide of anti-Semitism in America, we must engage protesters—many of whom are not motivated by anti-Semitism—in a manner that brings them to the table.