Dealing with protests, respecting free speech

This appeared in The Washington Post:

Many students and others in and around college campuses — including before the recent wave of demonstrations — have peacefully exercised their right to oppose what they consider Israel’s wrongful conduct in Gaza, as well as U.S. support for the Jewish state. Like many Americans, they find the terrible human costs of the Israel Defense Forces’ response to the Oct. 7 Hamas massacre — more than 34,000 mostly civilian Palestinians dead, destroyed infrastructure, mass displacement and a humanitarian crisis — militarily and morally unjustified.

On too many occasions, however, protesters expressing legitimate concerns have been overshadowed by antisemitic incidents. Calling for a cease-fire and recognition of a Palestinian state is one thing. Celebrating or rationalizing the horrific violence of Oct. 7, or cheering on Hamas or other extremist groups, is quite another. At some campuses, Jewish students, staff and faculty understandably feel intimidated and unwelcome.

To cite a few examples from one protest hotbed, Columbia University in New York, and its environs: Jews have been told “go back to Poland” and subjected to a handheld sign labeling them the Hamas military wing’s “next targets.” Jewish students were surrounded and pushed back by a student human chain, on instructions of a leading activist who warned that “Zionists” had “entered the encampment” — which protesters had set up in a public area. That activist, Khymani James, had previously told Columbia administrators that “Zionists don’t deserve to live” and suggested they should “be grateful that I’m not just going out and murdering Zionists.” (Three-month-old video of the meeting recently became public; James only disavowed his comments after they went viral.)

The worst expressions are not necessarily representative of all protesters, who themselves make up just a small fraction of students and young people generally. But any human-rights movement worthy of the name should practice zero-tolerance toward antisemitism, period. This is cause for profound reflection by the protesters.

Antisemitism is repugnant and contrary to democratic values; authorities who condemn it are making good use of their right to “counterspeech.” Beyond that, however, what should they do? Free expression, too, is essential to democracy. With very limited exceptions, people in the United States have the right to sing, write and say what they want, even if others might find their language offensive or hateful. Illiberal official action is the wrong response to illiberal words.

Fortunately, the Constitution, as interpreted by the Supreme Court, provides guidance that is both balanced and eminently workable. The First Amendment protects even highly objectionable or bigoted speech — short of actual harassment, threats or incitement to violence. And it allows provocative demonstrations, subject to rational, narrowly tailored, limitations on how, when and where they occur. Rules must be enforced evenhandedly, in what the court has called a “viewpoint-neutral” manner. (If only university leaders had not previously tilted, selectively, against speakers who contravene progressive norms, or equivocated about antisemitic rhetoric at congressional hearings.)

Prolonged protest encampments can be problematic. They present logistical issues: sanitation, noise, physical obstruction of public space. As long as they are not using such concerns as a pretext, schools can ban encampments and discipline protesters who persist, consistent with the nation’s constitutional tradition. If protesters from outside a university community try to demonstrate without permission on campus, schools may keep them out.

Gov. Greg Abbott’s heavy-handed use of state troopers to block a march through the University of Texas on April 24 exemplified — egregiously — what not to do. (Officers arrested more than 50 people, including a photojournalist.) Circumstances suggest that Abbott (R) cracked down not because of how the demonstrators protested but why. The governor had previously issued a constitutionally dubious executive order calling for toughened punishment of antisemitic speech that specifically named two pro-Palestinian groups, one of which sponsored last week’s march.

Princeton University, by contrast, called campus police on Thursday to enforce that institution’s long-standing ban on tents in public areas. Warned that they were violating the rules, students removed the tents and continued with a sit-in. It happened after the university’s president, Christopher L. Eisgruber, explained in a Daily Princetonian article that school policy is “‘to promote a lively and fearless freedom of debate and deliberation,’ not simply to maximize expression in all its forms, no matter how disruptive. Dialogue, debate, and deliberation depend upon maintaining a campus that is free from intimidation, obstruction, risks to physical safety, or other impediments to the University’s scholarship, research, and teaching missions.”

These are words to live by, for all colleges and universities. U.S. political culture is under stress but could emerge from this moment with its resistance to antisemitism and its commitment to free speech both strengthened. With enough firmness, fidelity to the Constitution and moral clarity, it will.