The way out of the campus conundrum
Insist on the correct legal standard to protect Jewish students.
On campuses across the United States, Jewish students are being harassed, intimidated, demeaned and abused by student groups supportive of the terrorist group Hamas. In many cases, administrators wringing their hands and refusing to exercise leadership are hiding behind the First Amendment, pretending that this is all about free speech. They are ignoring the desperate pleas for help, implying that someone has to actually get physically hurt or killed before they can step in.
In response, donors have pulled their gifts, politicians have called to revoke federal funding and law firms have filed complaints. While some schools have dug their heels in, refusing any accountability, others seem to be reflecting on what they might actually be able to do to signify that they are serious about combating antisemitism while still protecting the First Amendment.
The answer is clear, and it is exactly what donors and advocates should call for schools to do: Enforce the First Amendment, wholeheartedly — but first, understand its outer limits.
The First Amendment is not a free pass to threaten, harass, intimidate or otherwise violate the rights of others. It is true that freedom of speech, even offensive and hateful speech, should be protected; but there are limits to what constitutes speech, and there are rules for when it crosses over into actionable unlawful conduct.
The First Amendment does not protect trespassing, vandalism, harassment, assault or the destruction of property. Nor does it protect speech that is not to inform or persuade, but rather to disrupt lawful endeavors — activities like studying in a library, for instance. The First Amendment also does not protect someone who is making true threats, which the Supreme Court in Virginia v. Black (2003) defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Nor does it protect intimidation, which is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Just a few months ago, in Counterman v. Colorado (2023) the Supreme Court clarified that the intent standard for true threats is not that the person speaking actually intends to threaten the victim. Instead, they asserted that the First Amendment does not protect a person who consciously disregards a substantial risk that his communications would be viewed as threatening violence.
All of the above have occurred on American campuses in recent weeks if not days. But the problem here is somewhat more acute.
There is no First Amendment protection for speech that involves incitement, which the Court in Brandenburg v. Ohio (1969) explained includes speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg is famously a very high standard, and that is precisely where the universities are hiding. Despite the dozens of anecdotal incidents, and despite all of the well-known studies confirming that the kind of inflammatory discriminatory antisemitic rhetoric that these groups have been spreading leads directly to antisemitic violence, officials are telling students and parents that their hands are tied because in most cases (excluding, for example, Rutgers and Cornell) there has not been sufficiently direct incitement.
The truth is that even the Brandenburg standard has clear and applicable limits; schools can still impose reasonable time, place and manner restrictions, for instance. Even under the Brandenburg paradigm, any student rally that disrupts the educational enterprise and functioning of a school may be restricted by that school without offending the First Amendment.
But this argument is also unnecessary — because Brandenburg is the wrong standard for schools to be using, and university presidents and general counsels need to correct that misunderstanding immediately.
In Tinker v. Des Moines, the Supreme Court found that the Constitution does allow for schools to shut down speech that will “materially and substantially interfere” with the “requirements of appropriate discipline” in the operation of the school” or “invad[es] the rights of others.” That is the standard that these schools must now vigilantly enforce.
Of course, private colleges and universities can, in most cases, restrict certain speech, conduct and demonstrations without triggering any constitutional issues. But even a public university is not a public street, and the rules for what speech must be allowed on each are very different.
The Supreme Court in Healy v. James (1972) cited Tinker to hold that university officials do not have to tolerate student activities that breach reasonable campus rules, interrupt the educational process or interfere with other students’ rights to receive an education. This is especially true when the student speech is happening in school-sponsored forums or is reasonably perceived as bearing the imprimatur of the institution (e.g. NYU SJP). Additionally, the Supreme Court in Bethel v. Fraser (1986) and Hazelwood v. Kuhlmeier (1988) held that schools have even greater latitude to limit student expression if they can establish a legitimate pedagogical concern. Ensuring that all students have a safe and harassment-free environment in which to learn is an overwhelmingly legitimate pedagogical concern.
Legally, schools do not have to wait for a disruption to occur: they can ban potentially disruptive expression if they can “reasonably forecast” that the speech in question would disrupt school discipline or operation, or if it would violate the rights of other students. In Melton v. Young, for instance, the court ruled in favor of school officials who prohibited the wearing of a Confederate flag jacket because it was reasonable to assume that it would be disruptive in an environment of heightened racial tension. Cheering on the slaughter as victims’ bodies are still being recovered — announcing solidarity with this “resistance” movement, who uses rape and torture and murder as “legitimate” tools in an “armed struggle” — is certainly no less likely to cause a disruption than a jacket.
It is also worth recalling that under Title VI of the Civil Rights Act of 1964, any university that receives federal funding (the overwhelming majority of them do) has an affirmative legal obligation to protect their Jewish students — even from other student groups. Per the U.S. Department of Education Office for Civil Rights’ guidance, speech crosses over from protected territory into harassing verbal conduct (i.e. outside of the First Amendment) when it is “sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities, or privileges provided by a [university].”
Universities can protect speech, even hateful speech, but use both common sense and the relevant case law to know where to draw the line. This is the standard practice that donors, advocates, students and alumni should demand.
As a model for what this might look like, Brandeis University recently became the first school in the country to demonstrate real leadership and throw Students for Justice in Palestine off campus. The administration noted that the decision was not made lightly and cited numerous categories of verbal conduct mentioned above that fall outside of protected First Amendment expression and are “otherwise directly incompatible with the functioning of the University.” As President Ronald D. Liebowitz explained, “In no way does this violate higher education’s deep and enduring commitment to free speech. With the focus on creating an environment for exchanging ideas freely for the purposes of challenging one’s limited views, freedom of speech rightly understood demands also the responsibility to uphold community standards against the incitement of violence and harassment, and free of intimidation.”
Other presidents need the legal and moral clarity to follow Liebowitz’s lead. Those calling for change should articulate what that change is, and institutions changing their policies should be clear on how this new formula protects, rather than punishes, actual protected free speech.
Congratulations to Brandeis for leading by example, and may many other schools follow suit.
Mark Goldfeder is the CEO and Director of the National Jewish Advocacy Center,