Virginia’s First Amendment Balancing Act

Horrific anti-Israel, pro-Hamas protests no longer make the front page. But while the public’s focus may be elsewhere, the scourge continues, not just at elite private universities that have gotten the most attention, but also at state universities that differ from their private counterparts in significant ways.

All state schools, including Virginia’s, are considered extensions of the government. Therefore, they are subject to the U.S. Constitution’s First Amendment, which protects “free speech” (and freedom of religion).

Particularly considering the tension between First Amendment rights and the rights of Jewish students (and all students) not to be threatened and harassed, it’s worth exploring how Virginia, and its public universities, responded to the shocking events that took place after Hamas’ October 7, 2023 atrocities.

Before jumping in, here’s some brief background.

The First Amendment has been interpreted and fleshed out over many years. Cases are typically fact-specific and highly nuanced. Broadly speaking, the First Amendment protects most types of speech and expressions with certain limitations: true threats; incitement; and unlawful harassment/conduct. There is no First Amendment protection for speech involving unlawful conduct.

Despite its “Virginia is for lovers” tourism slogan, Virginia is no stranger to hate. Antisemitism has been present in the state (also called a Commonwealth) since the Civil War, if not before. My own Northern Virginia neighborhood apparently had “redlining” (residential restrictions based on race) for Jews and blacks until at least the 1950’s. Like many other places, Virginia experienced a significant increase in antisemitism in recent years.

Like it or not, as President Barack Obama famously said, “elections have consequences.” After a hotly contested campaign, Republican Glenn Youngkin won an upset victory for Governor in November 2021. His campaign was galvanized by cultural and school-related issues including the teaching of critical race theory (with its deep connections to antisemitism) in Virginia’s elementary and middle schools.

After his hard fought victory, Youngkin told the crowd, “Together …, we will change the trajectory of this Commonwealth … We are going to start that transformation on day one.” True to his word, on his first day in office, Youngkin signed an Executive Order establishing the nation’s first state Commission to Combat Antisemitism. In February 2023, Virginia’s Attorney General (AG) Jason Miyares created the first Antisemitism Task Force, to “monitor, gather information, educate and investigate” instances of antisemitism in Virginia.

Legislation formally adopting the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism was signed by the Governor on May 8, 2023. This was intended to be a first step in combatting Virginia’s growing “Jew hatred” problem.

A mere five months later, Virginia’s well-regarded state universities exploded with horrifying anti-Israel, antisemitic demonstrations, encampments, ceasefire demands, property damage, violent threats and more.

I want to share a sense of what happened at Virginia’s universities, and how the state responded to these terrifying and horrible events, largely through the lens of one public school, George Mason University (GMU). This university is located in Northern Virginia’s leafy suburbs (about twenty miles from Washington, DC) and is a short drive from my house.

For historical context, George Mason was a leader in the American Revolution and the primary author of the Virginia Declaration of Rights and the Virginia Constitution. His words and ideas were models for the U.S. constitution and other state constitutions.

My daughter earned her undergraduate degree at GMU. Friends and neighbors are GMU professors. I was a member of its Hillel Board for many years, and I mentored its current Board president when she was a student.

I care about GMU because of these and other connections. I also care about what happens in Virginia.

GMU is Virginia’s largest public research university, with over 40,000 students from all 50 states and 130 countries. It is nationally ranked as a top -50 public research university and its Antonin Scalia Law School is among the top 10 public law schools in the U.S.

GMU’s motto, “All Together Different, reflects its  diverse approaches to problem solving and research (e.g., impact of “zombie crabs” on the ecology of the region), the school’s significant percentage of “nontraditional” students and military veterans, and its modern campus (with residential dormitories, fraternities and sororities) that co-exist with a large commuter population.

Most relevant here, GMU is the most diverse campus in Virginia and perhaps in the nation. It has a large middle-eastern population and about a thousand Jewish undergraduates.

I met GMU’s Hillel Director, Rabbi Daniel Novick, in March 2023 at a networking brunch given by my neighborhood synagogue. We met again a few weeks later for coffee and spoke about ordinary things: the number of students who show up for Hillel-sponsored events; joint programming with Chabad (located right off campus); and plans for the future.

I’m very involved in Jewish National Fund-USA (JNF). So, naturally, we spoke about JNF’s unparalleled work in Israel and GMU’s Israel-related campus activities.

Daniel and I met again after October 7. It was a vastly different conversation.

After Hamas’ unspeakable atrocities, Daniel’s job changed dramatically. Almost immediately, he was at the epicenter of university administrative issues, policy making, legal and political matters, lobbying efforts and meetings with the AG’s Task Force on Antisemitism.

We talked about the horrifying “Students for Justice in Palestine”(SJP) campus protests that began on October 8. GMU Law professor David Bernstein described one such protest this way: “Five days after the worst mass-murder of Jewish people since the Holocaust, the rally was billed by SJP Mason as supporting ‘the resistance,’ i.e., the perpetrators of the massacre, Hamas. SJP Mason also called for the destruction of the State of Israel, the ‘liberation of our homeland and our people, from the river to the sea. Show up and show out for Palestine, and let GMU know that we will rise against the occupation!’”

Daniel told me then that GMU’s Jewish students felt overwhelmed and were scared to go to class. Rather than counter-protesting, they engaged in pro-Israel activities like “tabling” to provide positive and accurate information about Israel to Jewish and non-Jewish students.

Throughout this time, Daniel’s day-to-day responsibilities as a Hillel rabbi didn’t stop. When he received anxious calls from concerned parents and community members about how he was addressing the demonstrations, and other horrors, including antisemitic images on a campus bench, he might just say “I’m getting ready for a student Shabbat dinner.”

Moving on to the bigger picture, here are some highlights of Virginia’s actions (and GMU’s responses) to campus upheavals.

On October 31, 2023, Governor Youngkin issued an Executive Order creating an “actionable plan” to coordinate with educational institutions and law enforcement entities to combat threats of violence against Jewish and other religious communities. Universities were told to submit updated, comprehensive safety plans and increase collaboration with Virginia government entities.

Two days later, GMU President Gregory Washington issued a statement to organize pre-existing campus services into a coordinated approach to protect the campus community. It mentioned attempts to leaflet the campus with “deeply anti-Semitic rhetoric” and said “we repudiate this just as we repudiated terrorist attacks in Israel” and “also claim our right to call out such expressions as ignorant and hateful, and with no place at George Mason University.”

In mid-November, AG Myares sent a letter to all university presidents, powerfully condemning Hamas’ attack on Israel. He said Jewish students felt unsafe and threatened by certain chants and slogans and noted that some of the speech was antisemitic and “might not” be protected by the First Amendment because it could incite “imminent lawless action.” The letter also upbraided university presidents: “Your deafening silence in 2023 following your unhesitating condemnation in 2017 [of “Unite the Right” rallies] has not gone unnoticed.”

As a point of reference, the Presidents of Harvard, MIT and the University of Pennsylvania (all private schools) were hauled in front of Congress on December 5. They were excoriated for their failure to protect Jewish students and to acknowledge that protestors’ demands for eradication of the Jewish people violated their institutions’ conduct codes.

Demonstrations on Virginia’s campuses continued into 2024. In early April, Governor Youngkin signed legislation to “safeguard Virginians from unlawful discrimination, hate crimes and antisemitism.”

With Virginia’s universities still aflame (including arrests at several), Governor Youngkin appeared on CNN’s “State of the Union” in April. He reiterated that the First Amendment encompasses freedom of expression and “peaceful” demonstrations but, that encampments, intimidation of Jewish students, preventing students from attending class, and “annihilation speech” are not protected.

Following this, all Virginia universities were urged (by AG Miyares and Virginia’s secretary of education) to update their codes of conduct, considering “prior challenges” and that the fall semester could be “even more chaotic.”

GMU began to roll out updated rules in May. The rules ultimately included a requirement for masked individuals to show identification if asked, prohibited camping tents, and defined when structures had to be removed.

In an August welcoming letter to incoming students, GMU’s president referenced “the full array” of university policies to “guide First Amendment exercises.” The letter said hate and discrimination have “no place” at GMU and the university would not “hesitate to respond appropriately” to actions beyond the “broad protections of the First Amendment.”

I met again with Daniel Novick in early October 2024. I learned that SJP demonstrations were not as frequent, and Jewish students detour to avoid them. He said the demonstrations appeared to comply with GMU’s updated rules, and are monitored by school administrators.

Daniel also told me that Jewish students are trying to balance their “Jewish pride” along with their fear. Most want to support Israel and be seen as Zionists, but are conflicted because they feel that any criticism of Israel (particularly considering current nuances and complexities) could be viewed as antisemitic or anti-Israel.

Back to Virginia governance, the state’s Senate Committee on Education and Health recently held a hearing to examine what happened on Virginia’s campuses. Daniel (and others from the Jewish community) testified. Speakers talked about the trauma, fear and pain felt by students due to SJP protests and encampments. Some said students felt unsafe, and that protests deemed “peaceful” actually included vandalism, property destruction and harassment of Jewish students.

Others contended that campus protests and encampments were peaceful, that police intervention was excessive, and that updated university rules violated students’ First Amendment rights.

While this hearing should have been a model of decorum, speakers representing the Jewish community were reportedly drowned out by anti-Israel heckling and other disruptions.

I long for the halcyon days when my husband and I went to GMU basketball games to watch our daughter Amy (no longer able to play on GMU’s Division 1 soccer team due to illness) instead play with the university’s nationally number-one-ranked “Green Machine” pep-band. (Knowing that GMU is “different,” it shouldn’t come as a surprise that she was a member of the band’s string section, playing violin alongside a harpist, vocalist and non-student community members.)

I also long for Virginia to really be “for lovers” not haters.

But, this is not our current reality. The world has changed under our very feet. Antisemitism will not go away easily, amicably or soon.

While there are no easy solutions, Virginia’s ongoing saga may provide some nuggets. Here are a few:

It is important to identify, speak up and push back against antisemitism. It’s also important to choose strong leaders who will not only say, but also do, the right things even in the face of great pressures. It’s also important to protect the First Amendment, because the rights it affords go both ways.