Free Speech Advocates and Legal Scholars on the Recent Campus Protests
Where free expression ends and impermissible disruption begins
By now, many prominent advocates of free speech and legal scholars have issued statements on the recent campus protests. Here, we compile them in one place. Each writer explains the demarcation between protected free expression and impermissible disruption of the function of the university. Universities have a duty to maintain an environment that is conducive to study and scholarship. Those who choose to disrupt this environment by civil (or uncivil) disobedience must be prepared to pay the price.
Heterodox Academy
The Heterodox Academy (HxA) is an organization dedicated to the promotion of free speech and constructive debate. On May 7, HxA president John Tomasi published the letter “Where HxA Stands on the Campus Protests: A Letter from the President,” which states:
Highly publicized campus protests such as those at Columbia and UCLA, have not only a free speech dimension by which protestors exercise their right to call attention to neglected issues, but also a coercive dimension by which some students seek to force change by threatening to disrupt the normal operations of the university.
At some universities, students have successfully used threats to extract promises from the administration which, absent the threat, would not have been granted. Some university leaders ended protests by making strategic concessions. HxA believes that agreements that are entered into under threats are unlikely to be genuinely free, open, and mutually respectful. Such agreements also incentivize similar patterns of coercive behavior in the future.
The free speech of such protesters is rightly protected; the threats and disruption of university functioning are rightly not. [Emphasis ours]
Tomasi also comments on civil disobedience:
Of course, campaigns of civil disobedience are always an option. Historically, some such campaigns are now rightly valorized. But, like the most famous of their antecedents, those who take up the torch of civil disobedience should be prepared to accept the consequences as a part of their act.
Tomasi emphasizes:
University leaders have a responsibility to enforce the rules that keep their campuses open and allow students of every viewpoint to continue learning on their campuses free of harassment, intimidation, or violence. This means that university leaders must intervene in protests when violations of policy are clear, and such interventions must be made firmly and consistently to ensure that education continues on campus.
The Foundation of Individual Rights of Expression (FIRE)
In its April 22 “Statement on Campus Violence and Arrests,” FIRE wrote, “We must again restate a bedrock principle: Violence is never acceptable.” The statement continued:
Colleges and universities must ensure the swift arrest of anyone engaging in violence on campus, whether committed by students or visitors. Violence thus far appears to have been isolated, but things can change at any moment, and it must be made clear that any violence is unacceptable. Institutions must provide meaningful security and take prompt action to separate groups when tensions flare. For everyone’s safety, and to secure expressive rights for all, no one on campus should have any sense whatsoever that violence will be tolerated or excused.
Amidst this intense pressure, our nation’s institutions of higher education must lead the way. By acting decisively to defend protected speech while preventing violence, colleges and universities can preserve the safety and stability required for the discussion across differences they are uniquely equipped to facilitate.
Statement by Constitutional Scholar Robert P. George
Robert P. George is the McCormic Professor of Jurisprudence at Princeton University and a founding member and of the Academic Freedom Alliance. On April 24, Professor George tweeted:
My advice to university presidents is that your policy should be as follows: We honor freedom of speech and therefore do not impose and will not impose viewpoint-based restrictions on speech. We will, for the sake of protecting everyone's rights to teach and learn, strictly and evenhandedly (that is, in a viewpoint-neutral way) enforce the university's time, place, and manner regulations. Conduct in deliberate violation of these regulations will subject students, faculty, and staff to disciplinary proceedings. Willful violation of the regulations in defiance of a demand by university authorities or police to cease and desist will be grounds for permanent expulsion or exclusion from the university, as will violence of any kind, obstruction, disruption of classes and other university activities, destruction of property, intimidation, threats, and harassment. Due process in disciplinary proceedings will be strictly observed, with those subject to the proceedings afforded the presumption of innocence and the burden of proof being clear and convincing evidence. We reserve the right to refer criminal violations to civil authorities.
A Word of Wisdom from Keith Whittington
Professor Keith Whittington is a First Amendment scholar and, like Professor George, a founding member of the Academic Freedom Alliance. In an op-ed for the Chronicle of Higher Education, “Protest and Civil Disobedience Are Two Different Things,” he elaborates on the boundary between protected expression and campus disruption and clarifies the relevant responsibilities of the University:
Every college needs a set of policies balancing the need to provide ample opportunity for free expression on campus with the need to preserve the efficient and effective functioning of the university. In the language of First Amendment jurisprudence, that means the establishment of time, place, and manner regulations. The critical feature of such regulations is that they be content- and viewpoint-neutral. They do not distinguish between expressive activities on the basis of the messages being purveyed. Rather, they circumscribe how expressive activities can be conducted so that they do not unnecessarily interfere with the activities of other members of the campus community.
He further explains:
It is a frequent category error to imagine that such protests should be tolerated so long as they are nonviolent. The purpose of time, place, and manner regulations is not to stave off violence but to coordinate socially beneficial activities. Protests need to be stopped not only when they become violent but also when they interfere with the ability of others to use the campus for their own purposes.
And:
In order to prevent such demonstrations from getting out of hand, college must take aggressive measures to respond to actual physical violence, threats, and intimidation. The tactics of organized political street violence that have been deployed in American cities over the past few years are beginning to appear on college campuses, whether used by students or outsiders. Protesters who form human barricades to obstruct campus pathways, shelter violent agitators, or hinder law enforcement require prompt and firm intervention on the part of campus officials.
In an additional op-ed, “Civil Disobedience has Consequences,” in the Princetonian (May 10, 2024), Professor Whittington adds:
The advocacy for particular ideas through protest ceases to be expressive when protesters no longer take advantage of available opportunities to make a case to the broader community and instead seek to coerce other members of the campus community to simply accept their demands. Demands trade in the currency of coercion, not persuasion. Universities need to give no hearing to demands, and they should not tolerate those who wish to use force to make others accede to their demands.
And about the consequences, he continues:
Rules and laws exist for a reason, even on a university campus. Sometimes it might be necessary to engage in civil disobedience or even take direct action to try to stop the machinery of injustice. But taking such actions have consequences, and the mere fact that some wish to take those actions does not mean that anyone else must conclude that their actions were either laudable or justified or should be either encouraged or rewarded. When members of the campus community engage in conduct that violates the rules that allow the many diverse people on campus to coordinate their varied interests and activities, they are properly subject to disciplinary action. When protesters move from trying to persuade to trying to compel compliance with their demands, the correct response is simply to tell them “no” and to take what steps are necessary to restore the proper functioning of the University.
Law Professor Ilya Somin on Why the Current the Protests Are Not Justifiable Acts of Civil Disobedience
Ilya Somin is a Professor of Law at George Mason University. In his essay, “Campus Anti-Israel Protests and the Ethics of Civil Disobedience,” on the legal blog The Volokh Conspriracy, Somin contrasts the morally reprehensible behavior of the campus anti-Israel protestors with morally justified civil disobedience. He writes:
Illegal actions can indeed be justified in some situations. But the tactics used by many anti-Israel protestors fail any plausible criteria for such. The laws they are violating are not unjust. The victims of the violations are almost entirely innocent people. The violations are highly unlikely to lead to improvements in government policy. And, finally, the protestors' objectives are themselves unjust.
Erwin Chemerinsky on the Limits of Free Speech on Private Property
On April 26, in The Atlantic, Erwin Chemerinsky, a constitutional law scholar and the dean of UC Berkeley Law, published “No One Has a Right to Protest in My Home,” explaining why students he invited to his home do not have the constitutionally protected right to protest. He wrote:
On April 9, about 60 students came to our home for dinner. Our guests were seated at tables in our backyard. Just as they began eating, I was stunned to see the leader of Law Students for Justice in Palestine—who was among the registered guests—stand up with a microphone that she had brought, go up the steps in the yard, and begin reading a speech about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, my wife attempted to take away her microphone. Repeatedly, we said to her: You are a guest in our home. Please leave.
The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the First Amendment—which constrains the government’s power to encroach on speech on public property—does not apply at all to guests in private backyards. The dinner, which was meant to celebrate graduating students, was obviously disrupted. Even if we had held the dinner in the law-school building, no one would have had a constitutional right to disrupt the event. I have taught First Amendment law for 44 years, and as many other experts have confirmed, this is not a close question.
Likewise, trespassers do not have a constitutionally protected right to protest on private University campuses.