My last post looked at how colleges around the country responded to the Israel-Hamas demonstrations by resurrecting old free-speech rules and hastily writing new ones for what they are euphemistically calling “expressive activity.”* In this post we’ll see that federal and state governments are using their power to police protest speech on a broader scale.
A couple of years before he shot up a political gathering in Tucson, killing six and wounding nineteen, a domestic terrorist complained that “the government controls your grammar.” The government does not control your grammar. As we learned during the covfefe era, the government can’t even control its own grammar. But if you’re a protestor, the government would like to control your speech. It does so in three ways: holding public hearings to condemn speech; introducing legislation to punish speech; and pursuing complaints about discriminatory speech.
The hearings
Government intervention in the Israel-Hamas protests became front-page news when the presidents of Harvard, the University of Pennsylvania, the Massachusetts Institute of Technology (MIT), and Columbia were grilled about antisemitism on campus at hearings of the House Committee on Education and the Workforce. At the first hearing, the presidents of Harvard, Penn, and MIT gave answers that were both general and noncommittal. That proved a public relations disaster.
The presidents emphasized that resolving complaints about antisemitism requires an examination of the context, because speech is generally protected on campus, even when it’s hateful. In contrast, speech accompanied by action may be punishable, depending on the nature of both the words and the acts. That’s all standard First Amendment law. But the presidents’ nuanced answers, intended to convey an image of calm neutrality and concern for due process in the face of disruption, came off, not as deliberative, but as evasive.
Trying for a more-definitive response, ultra-conservative Rep. Elise Stefanik, of New York, herself a graduate of Harvard, asked each president to condemn statements calling for “the genocide of Jews.” Instead of declaring that such statements are reprehensible, all three equivocated with yet another “it depends.” That did not end well. The presidents’ responses to Stefanik’s prodding came off at best as tone deaf, at worst as antisemitism in action.
In a second hearing, the president of Columbia, hoping to appease the committee, claimed that she had already begun punishing students and faculty for their speech. But some committee members accused her of lying and insisted that Columbia was not doing enough. The president’s words didn’t play well on campus either, where her "shoot first and ask questions later" approach to the protests bypassed long-standing procedures for investigating student and faculty misconduct.
Things got no better after Columbia’s president returned to campus and ordered the police to break up student encampments and clear out a building that had been occupied. That conjured up disturbing memories of police dragging protestors from the same building in 1968. And it didn’t help when, during the current eviction, one officer accidentally fired his gun. Fortunately, no one was hurt in that incident. Even after the summer hiatus, when many campuses quieted down, the situation at Columbia remains problematic, to say the least.
In the outcry that followed the congressional hearings, the presidents of Harvard, Penn, and Columbia were forced to resign. But conservative legislators, who seemed intent on getting exactly what they wanted no matter what college leaders said, promptly added antisemitism to their list of “what’s wrong with American higher education,” a list that already targets diversity, equity, inclusion, gender studies, LGBTQ+ support, and pronouns.
The legislation
The war protests also brought a spate of legislation. A bipartisan group of congressional representatives introduced the Antisemitism Awareness Act of 2023 (H.R. 6090), a bill that would use the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism when enforcing federal antidiscrimination laws.
The IHRA definition, which covers both speech and action, was never intended to be legally binding. Rather, its broad language and the discussion that follows imply the importance of case-by-case analyses:
Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
In its list of examples, many of them based on speech, the IHRA adds that criticism of Israel may or may not constitute antisemitism, depending on intent and context. It’s important to keep that in mind when assessing the Israel-Hamas protests, where criticism of Israel became a major focus. Opponents of H.R. 6090, which passed with overwhelming support but led to no further action, noted that the bill is framed so broadly that it could be used to suppress or chill otherwise protected political speech.
The congressional focus on antisemitism continued to gather momentum. In April, 2024, Republican Sen. Tom Cotton and thirty-five of his Republican colleagues sent a letter to Attorney General Merrick Garland and Secretary of Education Miguel Cardona warning that, since many of the pro-Palestinian campus protests had gone beyond peaceful demonstrations, any failure of school administrators “to protect Jewish students from discrimination or harassment violates federal law and is grounds for those schools losing access to federal funds.”
Not long after, one of the letter’s signatories, Sen. John Cornyn, of Texas, introduced a bill to designate universities failing to take action against antisemitism on campus as “terrorist supporting organizations,” stripping them of their tax-exempt status. Both Cotton’s letter and Cornyn’s bill were silent on Islamophobia, which is also illegal.
Most recently, House Republicans threatened to withhold billions of dollars in federal support from universities and revoke their accreditation if they permit pro-Palestinian demonstrations on campus. Republican leaders were predictably silent on anti-Muslim speech.
In short, on the pretext of fighting antisemitism, while remaining silent on Islamophobia, Congress held one-sided hearings and introduced legislation with no chance of passing in order to generate headlines and show American higher education who’s in charge. None of which impacted the campus protests.
Resolving complaints
The U.S. Department of Education's Office for Civil Rights relied on existing law to force universities to take meaningful action on complaints of antisemitism and anti-Muslim behavior. Along with other federal agencies, the Department of Education interprets Title VI of the Civil Rights Act of 1964 as protecting students “from discrimination, including harassment, based on a student’s actual or perceived shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or religious identity” (emphasis added).
In May, 2024, the Department's Assistant Secretary for Civil Rights sent a “Dear Colleague” letter to American colleges and universities in response to hundreds of complaints the Office for Civil Rights received about campus antisemitism, and a small number of incidents of Islamophobia, most of them occurring after October 7th. That letter offers nine scenarios to help schools adjudicate cases of discrimination based on shared ancestry, nine cases of possible antisemitism or Islamophobia.
Some of these deal with actions: for example, a teacher fails to intervene when a student’s hijab is pulled off by classmates at an elementary school. Others deal with speech, or speech accompanied by action: attempts to block an Israeli film maker from speaking on campus; chants of “go back to Europe” when a student who appears to be Jewish walks on campus; students calling members of an Arab student group “terrorists” or chanting “second Nakba.” The letter also warns instructors not to single out students based on their known or perceived ancestry or ethnic characteristics, and to avoid referring to such groups in stereotypical terms.
OCR’s efforts did get some results, as the University of Michigan, the University of Illinois, and the City University of New York signed letters of agreement admitting no wrong-doing but promising to abide by federal guidelines for investigating charges of bias, which means judging speech and action after the fact. The schools also promise to educate staff and students on discrimination, hoping to minimize or eliminate the need to investigate discrimination. But such education—which ideally should consist of more than completing annual on-line antidiscrimination modules based on OCR scenarios—will always take time, and it will always be imperfect. In any case, the OCR investigations are ongoing, and more schools are expected to enter into agreements to investigate charges of discrimination stemming from the protests and counterprotests.
The states
The states continued their own efforts to rein in campus speech. Red states in particular have been trying to control everything that's said or read in classrooms. In one instance specifically related to the campus protests, Ray Rodrigues, the Chancellor of Florida’s state university system, ordered all twelve of Florida's public colleges to review course content for antisemitism and anti-Israel bias. He told college administrators to check course materials for keywords—shibboleths—including Israel, Palestine, Zionism, Jew, Jewish, and Middle East. That review turned up some 250 courses on the history and politics of the region, but it also flagged courses on band (specifically, the percussion ensemble at the University of West Florida), parasitology, painting, calculus, chemistry, and hip hop. The Chancellor’s office, which did not investigate Islamophobic bias in course content, insisted that its review did not infringe on academic freedom, since all courses must comply with Florida’s antidiscrimination law.
Does speech policing work?
Are the campus rules for expressive speech and the government attempts to discourage bias and harassment effective? Or do they constitute an abridgment of free speech? There's no sound-bite answer to these questions.
Defenders of free speech often argue that sunshine is the best disinfectant, that the surest way to fight “bad” speech is to expose it to the light of day. But it would be quite a trick to reconcile the Sunshine State’s trawl through college catalogues with the free trade in ideas that forms the basis of the First Amendment’s speech protections.
Those protections are not absolute. During World War I, the Supreme Court ruled that antiwar speech posed a "clear and present danger" and was not protected by the First Amendment (Schenck v. United States, 249 U.S. 47, 1919). Soon after that, responding to fears that the Russian revolution could spread to other countries, the United States began policing communist speech. But arguing that education was a more-effective deterrent than censorship, Supreme Court Justice Louis D. Brandeis took the unpopular position of defending such speech:
No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. [concurrence, Whitney v. California, 274 U.S. 357, 1927]
Brandeis’ ideas were incorporated into First Amendment jurisprudence some forty years later, in Brandenburg v. Ohio (395 U.S. 444, 1969), when the Court upheld the legality of racist speech so long as it posed no immediate threat.
The government can define words hoping for a sure-fire test of discrimination based on religion, shared ethnic characteristics, or national origin. Or it can offer scenarios to help administrators adjudicate specific campus incidents. That’s all about punishing speech after the fact. Enforcing silence either by restrictive time, place, and manner regulations or by threat of punishment won’t help: the nature of protests is to defy the rules. When protestors and counterprotestors shout their slogans, there’s no time to consult dictionaries and lawbooks, and there's certainly no time to check the campus administrative manual.
Antisemitism and Islamophobia are not legal and they’re not OK, but suppressing protests won’t prevent discrimination. As Justice Brandeis also said back in 1927, the nation's founders “eschewed silence coerced by law.” Even anti-war speech is now constitutional, as the Supreme Court affirmed in Watts v. United States (394 U.S. 705, 1969), a case about a Vietnam War protestor who joked about shooting LBJ. As the Court observed in that case, the language of demonstrations is often “vituperative, abusive, and inexact,” but so long as it does not lead to imminent lawless action, it remains protected political speech.
As I said in my last post, in response to last year's protests, many colleges adopted, or were forced to adopt, a position of political neutrality. But neutrality doesn't require silence: when protestors celebrate violence, there's nothing in the First Amendment or the campus by-laws to prevent a college president from condemning violence, while at the same time ensuring that everyone gets to speak.
Today’s protests and counterprotests, which haven't actually impacted the course of the war but have driven deep divisions in families as well as among friends and colleagues, will eventually die down, and hopefully some of that interpersonal damage can be repaired. And the new rules will eventually be relaxed, as they always are in times of reduced stress.
But just as the campus rules for protest that go back to the 1960s were dusted off and updated to deal with today’s issues, today’s rules will be revived when the next divisive issue arises. And protestors, both on campus and off, will continue to defy the rules policing their speech—whether those rules are set by the campus or by the state—just as they’ll defy the long-standing laws restricting action.
The notion that good speech will drive out bad is tailored to the sort of reasoned, civil discussion we expect in seminars, where the assumption is that the “other side” is listening and might be amenable to changing their minds (whether they do change their minds is another question). In contrast, protests are all about disorder and disruption, and no one should be surprised that the language of protests and counter-protests is vituperative, abusive, and inexact. Making new rules, reviewing scenarios, requiring Free Expression Permits, and threatening schools with the loss of federal funds may please donors and constituents, but they won’t stop protestors when things get real.
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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.
