A First Amendment lawyer argues the university’s role in a crisis should be shutting up.
Students protesting the Israel-Hamas war call for a ceasefire in Gaza. Michael Nigro/Pacific Press/LightRocket via Getty Images Fabiola Cineas covers race and policy as a reporter for Vox. Before that, she was an editor and writer at Philadelphia magazine, where she covered business, tech, and the local economy.
The Israel-Hamas war has brought the long-simmering debates over free speech on college campuses to a boiling point.
If school leaders released statements, they were criticized — for not denouncing Hamas and antisemitism or for ignoring the Palestinian plight. On campus, both Jewish and Palestinian students say they aren’t getting support from administrators and staff. Campus protests have put pressure on school leaders to choose a side or curb student speech and behavior.
Emotions and fears are running high: Jewish students and student groups say they are fearful of antisemitism on campus. Palestinian students say they are facing Islamophobia and racism. Students who signed petitions that critics say supported Hamas in the wake of its October 7 attack are losing career opportunities or have been publicly named and investigated.
The leading group advocating for free speech on campus argues that the problem is not that universities are doing too little to stifle hateful speech; it’s that they have already done too much. Amid the major social and political catastrophes of the past decade, higher education institutions have strayed away from their mission: to foster dialogue and the flow of different ideas, said Alex Morey, the director of the campus rights advocacy program at the Foundation for Individual Rights and Expression (FIRE).
Sometimes the free flow of dialogue can be uncomfortable, and FIRE often defends statements and individuals who are unpopular. Even as people on and off campus fear that heated rhetoric will lead to an increase in Islamophobic or antisemitic violence, Morey argues colleges should not stop their students from making statements that many find deeply upsetting or even dangerous. Instead, she said, colleges should focus on creating a safe environment where even jarring, hurtful, or racist notions can be discussed and debated.
It’s a lot to grapple with, and I talked to Morey about it all: school statements, student protests, faculty speech, whether words are violence, and why certain students are under more scrutiny than others. Our conversation has been edited for length and clarity.
What’s your broad assessment of how the conflict in the Middle East is playing out on college campuses?
The zoom-out assessment is that it’s a really divisive topic. It’s a big controversy, whether you are looking at it on the ground in the Middle East, or if you are on a college campus. Wherever people are talking about what’s going on with Israelis and Palestinians, this is a hot-button issue.
Lots of people want to express their opinions about it, so it’s no surprise that on college campuses, we are seeing the same level of passion from students and faculty as we’re seeing from anybody who is confronting this long-running and really intractable conflict.
That said, FIRE is always urging colleges and universities and members of those communities, whether you’re a student or the president or a faculty member, to recognize the university’s very special role when it comes to confronting these problems. [Universities] are not corporations. [School leaders] are not politicians.
We have found in recent years that universities are acting a lot more like corporations when it comes to making statements about big political and social issues. They’re worrying about, “Well, how does this look for the brand?” or “If there’s controversy on campus, is that going to make legislators mad at us and take away our funding?” The focus has been removed from what we think is the core mission of the university, which is to foster debate and discussion. It is to welcome not just a diversity of students and faculty and help them thrive, but to also embrace a diversity of views. The college campus is the place to have people’s different authentic views come together, where we can have discussions in a scholarly and civil way. That isn’t a top priority for many universities, it seems, and that is a big mistake.
The Israel-Hamas conversation has seemed to wake administrators up, at least a bit, to the realization that if they continue their practice of taking firm sides on political and social issues, they will, repeatedly, arrive at places like this, where there are conflicts on which there is no “right” side.
You’re saying universities should not have come out to comment on Hamas’s attack on Israel or on Israel’s continued bombardment of Gaza. But we are now past that point at many schools, as you acknowledged.
Now some students and faculty members are facing consequences as part of this environment you describe in which universities are trying to be arbiters of right and wrong when it comes to speech and actions. In light of this, what are the foundational speech protections that students, faculty, and school leaders have on campus for speaking out on this issue?
It depends on whether or not you’re on a public or private campus. Public campuses have to follow the First Amendment, which means students and faculty have broad First Amendment rights. Students can express their views on anything on campus. They can protest. They can hand out leaflets, or, in line with the university’s posting policies, hang up posters. They have broad First Amendment rights that would apply to anyone in society when they’re speaking off campus in their free time and in many of the areas on campus. There are exceptions for in the classroom. They can’t get up in the middle of class and be screaming or something because faculty also have First Amendment rights, including the right to academic freedom, which entails, among other things, the right for them to control their classroom.
Faculty also have strong academic freedom rights, which is like a corollary of the First Amendment, to make extramural commentary. That means that on their own time they can talk about things that are related to issues of public concern. So something as politically dicey as what’s happening in the Middle East is an incredibly important issue of public concern.
Administrators actually have fewer rights. Of course they have their rights as citizens when they’re off the clock, but because they are effectively employees of the university, their speech can be restricted in ways that we don’t see for faculty and students, who have much broader rights.
Private campuses that make free speech and academic freedom promises in their mission statements, which is most of them, have to keep those promises. These promises all basically say our students and faculty have free speech rights commensurate with the First Amendment.
And how does counterspeech fit into that framework of protections?
Counterspeech is super important. The vision of the First Amendment is not just that people are allowed to say anything without the government suppressing it. It’s this idea that if we all talk together, we will have better outcomes for society. When somebody raises an idea that might be unpopular or wrongheaded or offensive, the idea is that other people will then lend their voices through counterspeech and say, “I disagree with that idea and here’s why. Here’s why my idea is better.”
That gets complicated in practice.
There are some nuances that are really important, that illustrate how universities could be doing a better job of explaining this to students and faculty and deans who are in charge of making sure different speaking events and protests go off without a hitch.
One is that when students are speaking in open outdoor areas of campus, areas that function like a public square, if a heated back-and-forth occurs between students, that’s protected speech. We’ve been seeing this a lot in recent weeks, where there might be a pro-Israel protest on the quad and a pro-Palestinian student comes up and says, “You all are a bunch of jerks!” This is all protected as long as there is no physical altercation or true threat, which has a specific legal definition.
Then another situation we often see these issues raised is when it comes to invited speakers or situations where a student group has reserved a space for a speaker or their members to speak. There’s been a lot of confusion about, “Well, can’t a protest group come marching through this speech and shout it down? Isn’t that our free speech?” The Supreme Court has firmly said no, that’s called a heckler’s veto. It means if there is a particular forum that has been reserved for a particular type of speech, those students who are putting on that speaker or who are speaking, have the right to control that forum until they’re done speaking. What those protesters can do instead of censoring the speech is have space nearby outside the venue where they can protest contemporaneously.
Universities should support that kind of exchange and teach students it’s not actually free speech to shout down the speaker. They should facilitate that exchange of ideas. Relatedly, actions like ripping down posters also typically are not protected expression. Blocking access to or egress from buildings, trespassing, incitement — where you’re actively, intentionally encouraging someone to go commit a crime imminently and it’s likely that they will do it — those things are not protected. Most of what we see on campus is just students and some of the faculty having really heated debates and expressing opinions that a lot of people find hateful and offensive and that, without more, is all protected.
A “Kidnapped from Israel” sign is taped to a light post during a rally as students at NYU call for a ceasefire in Gaza. Michael Nigro/Pacific Press/LightRocket via Getty Images Fabiola Cineas
But I feel like since 2020, a facet of our society now — and this especially plays out on college campuses — is that students look to administrators’ and leaders’ messages to feel safe. There’s the example of how after 9/11, hate crimes against Muslims decreased after President Bush said that America will not tolerate Islamophobia. I spoke to the folks at Hillel International who told me Jewish students on campus don’t feel safe because they don’t believe they have the support of school leadership. A lawyer at Palestine Legal told me Muslim students don’t feel supported right now. And when they say support, it’s not necessarily like, are there more officers on campus to protect our safety, but it’s like, what is the administration communicating in its statement that can help us feel safe?
This is probably the most important change that we need to see on campuses if we are going to have the kind of speech and debate climate that’s ideal in these university spaces.
There’s been a lot of research about how this generation of students is dealing with more mental health issues than in other generations. One reason is these students have had very intensive parenting that didn’t expose them to views or ideas that could upset them. Now when they get to campus, they have similar expectations, that they can go to someone to say, “Fix this for me, I’m upset.” But universities really need to help teach them that words and ideas are incredibly powerful, but so are they. They can confront a lot of these ideas with confidence.
They need the skills to understand, “Why is it important to listen to people that I might not agree with? What are the contours of listening to an idea that I disagree with? I am actually strong enough to be able to handle that, and, in fact, it’s so much better than when these ideas have to be pushed underground and they fester, that they turn into actual violence.”
There are benefits of genuinely confronting these ideas. We need to help students learn that while words and ideas are incredibly powerful, not only are they not “violence,” but, in fact, they’re the opposite of violence. And they are the best way that we, as humans, have ever devised to work out our problems without killing each other or without jailing each other.
Is all speech being treated the same right now? Are students who are speaking out in support of Israel being treated the same as students who speak out for Palestinian rights?
It depends on who you ask. That’s the heart of all of the discussion of “hate speech” right now. Like, if you say, “Free Palestine,” then you must mean that you’re pro-Hamas. Or if you say, “release the hostages,” then that must mean you are cool with genocide in Gaza. Of course, it’s much more nuanced than that. A lot of people are justifying not wanting to talk to each other because they think these are just war criminals on both sides.
From a First Amendment perspective, there should be no value judgment on speech other than is it protected or not. And when we’re asking that question, we’re asking, should the government or the institution that promises First Amendment commitments, should we put them in charge of deciding which is the appropriate view to have on Israel-Palestine?
We think the key to navigating these incredibly divisive and polarized times that are now in front of us, unlike any time in the past, is to have universities not take a stance on these issues for exactly the reason you raise. At the University of Arizona recently, the president came out saying, “We condemn Hamas.” He also basically said, “I’m really nervous about the [Students for Justice in Palestine] chapter on our campus speaking up about Palestine and liberation, they’re going to do a rally on our campus and they have the right to do that, but I don’t really like it. It doesn’t align with our values.”
Then SJP immediately canceled the rally and said they didn’t feel safe doing it on campus. That was a grave situation in which nobody’s First Amendment rights were violated since everybody who was speaking and counterspeaking had the right to do that. But when that speech is coming from the institution itself, an institution that is supposed to embrace all views, the effect is that some views can be marginalized.
We’re seeing many situations of students being investigated, like Ryna Workman, who lost her big law job for saying Israel bears responsibility for the loss of life in Israel. NYU said they are investigating her. We are definitely seeing the pro-Palestinian type of speech being less popular writ large on many campuses. One thing universities can do to signal that they are not elevating some protected speech over other protected speech is for the institution itself to not start from a place of bias.
A truck with pro-Israel messaging parked near the pro-Palestine rally at NYU. Michael Nigro/Pacific Press/LightRocket via Getty Images Fabiola Cineas
You mention that students who are articulating pro-Palestinian views are being disproportionately challenged on their speech. Why do you think that is?
It’s probably because the pro-Palestinian students do feel more like the minority on most campuses, and because often they are. And so they feel less empowered and less supported by the university. If universities had come out and said, “We stand with the people of Gaza. End genocide now,” it might be a totally different situation where Palestinian students were feeling like their speech is the one that is important on campus.
And then in broader society, we’re not seeing employers take people’s jobs because they condemned Hamas. The people that stand with Gaza, they’re the ones losing their jobs. The US government is fully behind Israel. Beyond campus, there’s this sense that most people are generally pro-Israel at this moment. So students who are pro-Palestine probably feel like their speech is unpopular and we’re seeing that play out on campuses. I don’t think we’ve yet had a situation where a pro-Israel student or professor is facing some kind of censorship attempt from the university. I could be mistaken but there’s lots coming from the other direction.
What’s your assessment of how campus protests have played out? They appear to have gotten heated, with clashes between dueling protests. Jewish students are fearful that some pro-Palestine rallies have been antisemitic. There have been images of students with signs that say “keep the world clean” accompanied by an image of the Israeli flag in the trash. Palestinian students and advocates report being shut down.
It’s all protected, as long as that’s all there is. As long as there is no true threat.
What is a true threat in this context?
A true threat is a serious expression of an intent to commit unlawful violence that’s targeted toward a person or a specific group of people, like “Those people over there, we’re going to do something bad to them.” It’s a very high bar, so even stuff that people find very offensive or wrongheaded, like the Star of David in the trash can, is all protected unless there is some kind of substantial step that moves it toward meeting that true threat threshold.
And how are incitement and discriminatory harassment different?
Incitement is a statement in which the speaker is asking people to commit an unlawful act of violence. Again, it has to be targeted in the way that a true threat would need to be targeted, and it also has to be likely to occur.
A lot of this generalized, very heated rhetoric around Israel and Palestine is not going to meet that high bar. It’s the same with discriminatory harassment. In higher ed, discriminatory harassment is only those unwelcome statements that are so severe, pervasive, and objectively offensive. It is typically repetitive, targeted conduct or speech that is so serious that it deprives the victim of their ability to get an education at the university. So just walking around campus seeing a poster [with hateful language], that’s going to be upsetting. That’s going to make you want to speak out and counter that, but you can just walk away and still go to class.
Of course, universities can speak to campus communities and say, “Look, to the extent that our Jewish or Palestinian students are feeling unsupported or are worried that some of this speech might devolve into violence, here are the steps we’re taking.” And those steps can include ramping up security, providing the contact information for campus safety, and providing mental health resources, other health resources.
Universities can do what they can to make sure that they are creating a campus that’s not a tinderbox for violence. But beyond that, it is very important under the First Amendment that colleges and universities not try to sanitize or civilize a lot of this speech that is heated and passionate for a reason.
I am still trying to understand how really antisemitic or racist or Islamophobic/anti-Palestinian statements are akin to saying “Fuck the draft,” particularly in this climate.
It’s a tough one. But I’ve got the answer for you. A lot of people are saying “hate speech isn’t protected speech.” But hate speech is protected speech because there is no legal definition of hate speech.
Israel thinks the Palestinians are engaging in hate speech and the Palestinians think Israel is engaging in hate speech. And who’s right? We can’t know. That’s sort of the idea that’s embraced by the First Amendment, that one man’s vulgarity is another man’s lyric.
Another example is stomping on the American flag. Some people think that we can all agree that stomping on the American flag is unpatriotic and hateful. But you could argue that the person stomping on the American flag loves America too, but maybe they don’t love how it’s being run right now and it’s their First Amendment right to raise those concerns.
The key Supreme Court case that talks about hate speech and why it has to be protected is Snyder v. Phelps, which is the Westboro Baptist Church case in which the church was outside military funerals with signs and shirts that said, “Thank God for dead soldiers” and “Fag troops.” The parents of some of these soldiers sued the church since they believed that the speech was so disgusting. The families believed that that kind of hate speech wasn’t protected.
But the Supreme Court unanimously said the church’s speech is protected. It’s because speech is so powerful. It can make people very upset. It can prompt people to do things and make change and raise their own voices in protest. In the US, we have a unique commitment to leaving debate as wide open as possible so that we don’t stifle debate.
Are there international comparisons that help us illustrate why America is so committed to protecting speech, even if it’s hate speech?
There have been attempts in other countries, [in] Europe, France and Germany, in particular, to pass antisemitism laws that make it illegal to say stuff like “I hate the Jews.” But there are a couple of interesting things about those antisemitism laws, about how they don’t work.
One, we have seen uneven implementation of those laws. For example, when the Charlie Hebdo newsroom was shot up because they were making fun of the Prophet Muhammad, a lot of Muslims were saying they’ve been talking about issues that are important in the Muslim community but were being targeted under the antisemitism law. There have been Muslims put in jail for violating the antisemitism law when they were making statements like, “Maybe I can see why some of these Muslims are acting in violent ways.” Muslims have been jailed in France for that, but the Charlie Hebdo staff were making fun of Muslims and it was no big deal.
Separately, Germany has some of the strictest antisemitism laws, where you can’t make certain statements about Jews. And they’ve also got the biggest underground growing ultra-right Nazi crisis — that German authorities can’t keep track of — in the world because we don’t know where these Nazis are. They can’t say this stuff, but they still hold those views.
Students from Hunter College participate in a pro-Palestinian demonstration on campus. The student organization Students for Justice In Palestine (SJP) held protests in colleges across the nation to show solidarity with Palestine. Michael Nigro/Pacific Press/LightRocket via Getty Images Fabiola Cineas
There’s the sense right now that this kind of hate speech is widespread, that students all across America are engaging in some kind of charged speech that is disrupting the ability of campuses to function right now. And the war in the Middle East is only intensifying. Is it the case that speech is getting worse on campuses because it is going unchecked?
I think, broadly, those kinds of very extreme statements are not rampant on college campuses. I know we have seen an uptick in this really heated rhetoric in the last few weeks. But a lot of the pushback that I get during this free speech work is like, well, if we allow speech to be that free, then KKK groups are going to be popping up on campuses everywhere. That is not happening. Most people are decent people who want to have these conversations, so universities should be fostering them rather than taking action to silence students.
Can you talk about why you believe it feels so charged to call someone antisemitic right now, or to call someone a Zionist? Students are saying they’re afraid of being called one or the other, or are being called terrorists or terrorist sympathizers. Are these terms being weaponized in some way and why?
The zeitgeist for many people is to take a single view that someone might have and extrapolate that to an extreme, and say, “Well, if you believe this one thing then you must believe all these other things.”
People are seeing that happening, and they’re very worried about being misunderstood. I don’t think there’s a lot of recognition in the world right now that people are more than just one particular view. We’re nuanced, complicated creatures. We’re afraid of what’s happening in our world right now and we want to be in our little boxes and look for any signal from other groups that they might be a danger to us.