Colleges around the country responded to last year’s Israel-Hamas demonstrations by resurrecting old free-speech rules and hastily writing new ones for what they are now calling “expressive speech.”* The rules start with a defense of free speech, then they list all the restrictions on speech: what can’t be said; where it can’t be said; and when it can’t be said.
Such policies typically aim to preserve the ideals of reasoned academic dialogue while protecting the rights of everyone involved: speakers, listeners, protesters, counter-protestors, those who may want to know what the fuss is all about, and those just trying to get from one place to another on campus without being impeded by people waving flags, banging drums, or trading slogans and insults.
The new rules don’t guarantee that either “expressive speakers” or university administrators will keep their words and deeds in check. Civil debate may work in a seminar, but as the Supreme Court observed about demonstrators at an earlier Vietnam War protest, “the language of the political arena . . . is often vituperative, abusive, and inexact” (Watts v. United States 1969). As for administrators, they can be too eager to skip the rule book and go straight to 9-1-1.
First, a word about free speech. Public colleges in the U.S. are government entities and must follow constitutional free-speech guidelines. The private schools are not bound by the First Amendment, but many of them embrace its speech protections as well.
The First Amendment says, in part, “Congress shall make no law . . . abridging the freedom of speech.” Although it’s phrased as an absolute—Congress shall make no law—it turns out that the government may indeed make some laws restricting what you can say. Obscene speech is unprotected speech, along with lying under oath, defamation, advertising, threats, conspiracies to commit illegal acts, and speech inciting imminent lawless action.
Colleges must allow most other speech, but they may regulate where, when, and how that speech takes place, what’s known as time, place, and manner restrictions on speech. Here are some common don'ts: No protests between 11 p.m. and 8 a.m. No protests during exam week. No protests in class, in the dorms, in the library, in the president’s office. No amplified sound. No livestreaming. No permanent signs. No paint on college buildings or walkways. No harassment.
Such speech restrictions must be both reasonable and viewpoint-neutral. They can’t favor one side or punish another. And they can’t impose a “hecklers’ veto,” banning speech because it might provoke violence.
Many colleges preface their protest policies with an enthusiastic defense of free speech. Here’s what the University of Chicago says: “The preservation and celebration of the freedom of expression [is] an essential element of the University’s culture.” But such support of free speech is just a prelude to a list of speech restrictions. For example, responding to last year’s demonstrations, Chicago supported the protestors’ right to speak but added, “We only will intervene when what might have been an exercise of free expression blocks the learning or expression of others or that meaningfully disrupts the functioning or safety of the University.” And Chicago did intervene, ordering police to clear out encampments and arrest protestors who took over a campus building.
Here are a few examples of campus speech limitations specifically tailored to the latest protests.
- Franklin and Marshall University banned posters containing hate speech (hate speech is protected by the First Amendment, but Franklin and Marshall is a private school).
- Cornell stressed its support of speech that is not disruptive, with a particular emphasis on what constitutes disruption: “Expressive activity may not compromise public safety, impede the free movement of people or vehicles, damage university property, or interfere with regular university operations.”
- Harvard reminded everyone that its long-established policy guarantees “freedom from personal force and violence” and that “conduct such as assaulting, threatening, or intimidating another person or damaging, defacing, or removing a properly posted sign is not permitted.”
- Barnard was more extreme, banning political posts on department websites and prohibiting all political signs on campus.
- The University of North Carolina focused on punishment, reminding commencement-goers that the state’s free speech laws “provide a range of possible disciplinary actions for those who substantially interfere with another person’s protected free speech rights. This includes protests that limit the ability of others to hear a speaker.”
- UNC also protected the audience’s right to see a speaker: a message on the jumbotron at the school’s commencement went beyond the usual reminder to silence mobile phones, bluntly warning, “Anyone who . . . does not put down signs that block [the] view will be removed and arrested.”
- And as UCLA sent in the police, it reminded demonstrators that “civil disobedience is not protected speech.” Henry David Thoreau knew this; so did Martin Luther King. And so did the 50 or more people arrested at UCLA last June.
- The University of Pennsylvania put in place strict time, place, and manner limits that cover everything from postering and chalking to loudspeakers and livestreaming. Encampments are banned, and any structures erected by protestors, including sculptures, require advance approval. Demonstrators must have Penn IDs, and outsiders “may have less expansive rights of open expression in University locations than those who are members of the Penn community.”
- And no more spontaneous protests at Penn: protesters must apply for official approval at least 48 hours in advance.
More schools are making demonstrators ask permission before they protest—a high-stakes version of raising your hand in class. Rutgers reminded community members of its strong support of “the right of free speech—including the right to express views that seem offensive to others.” But Rutgers protestors must now obtain a “Free Expression Permit” at least three business days before expressing themselves, making the right to speak equivalent to getting a bus pass or a parking permit.
Recognizing that not everyone can delay a protest for 72 hours, Rutgers does permit spontaneous demonstrations, provided that the demonstrators first fill out the Free Expression Permit application, a step which makes their actions slightly less spontaneous.
Some schools also declared their political neutrality, as if a declaration of neutrality were a magic formula for pre-empting future protests or inoculating the institution against protestors’ demands. Harvard justified its neutrality by explaining, “The university’s leaders are hired for their skill in leading an institution of higher education, not their expertise in public affairs.” This, despite the fact that before he was Harvard’s president, Larry Summers served as Treasury Secretary in the Clinton administration, and after stepping down from the Harvard presidency, Summers headed up the school’s Center for Business and Government, which focuses on public policy.
Some of the new rules are just weird, like this hyperliteral restriction on protest speech at the University of Illinois: “Handheld signs must be handheld.” It’s a viewpoint-neutral restriction, for sure. But it’s also proof, if you need proof, that the regulations were drafted by the university’s lawyers, who have no fear of saying the same thing twice in a five-word sentence, and not by its English faculty, who would be quick to point out that handheld signs are by definition handheld. Once they're stuck in the grass or strewn across a sidewalk, they no longer count as handheld. Why not just tell demonstrators, “No littering”?
And as long as the University of South Florida was making rules to severely limit protests—requiring speech permits in advance and forbidding protests after 5 p.m., thereby cutting down on police overtime and ensuring that administrators can go to happy hour—it also banned the sale of homemade food: no more bake sales at USF to raise money for hundreds of student clubs.
Many of the new free-speech policies focus on punishing speakers. In a case about an antiwar protest during World War I, Supreme Court Justice Oliver Wendell Holmes wrote that the proper response to protest speech isn’t punishment, it’s more speech, since good speech will prevail in the marketplace of ideas (dissent, Abrams v. United States 1919). But New York University used “more speech” to punish student protestors who had been arrested, forcing them to write “reflection papers” admitting “that you have thought about . . . [your] behavior.” It’s the university equivalent of writing “I will not break the rules” 500 times on the board.
The First Amendment protects against compelled speech: you can’t be forced to say something that conflicts with a deeply held belief. Several courts have found that the constitutional protection against compelled speech means you can’t be forced to bake a cake for a same-sex wedding and “you can’t make me say your pronouns.”
But NYU’s “reflection” essay is compelled speech in defiance of the First Amendment. It’s a forced confession, with no Fifth Amendment right to remain silent: “Your paper cannot serve to justify your actions, evaluate the actions of others, or challenge a conduct regulation.” Since revision is a key element of the writing process, students are told that if their confession isn’t complete, it will be returned for revision until they produce an acceptable confession. Just a whiff of 1984 in 2024.
These campus free-speech policies prioritize order at the expense of speech. But protests are all about disorder and disruption, accompanied by language that is often vituperative, abusive, and inexact.
These updated campus restrictions offer, not speech protections, or a means to keep the university going in the face of political turmoil, but new ways to punish those who speak without raising their hand. They may claim to address antisemitism and Islamophobia, but they're framed so broadly that they cover any speech that the admins don't want to hear. But even these broad speech restrictions aren't enough to satisfy those legislators using campus protests as one more way to undermine the public’s faith in higher education. I’ll look at some of the latest governmental free-speech interventions in my next post.
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* I do have opinions on the Middle East conflict, but they’re irrelevant here: My expertise is in language policy, not in conflict resolution—not that the conflict resolution pros have had any success.
