The current protests on college campuses across the nation bring into focus differing opinions on the limits of free speech and assembly. Particular questions seem to defy resolution. Nevertheless, there is some misunderstanding regarding the settled breadth of the First Amendment.

The protestors have acted as if they have constitutional carte blanche to gather anywhere to say anything in opposition to Israel and its war against Hamas terrorists; a subset thinks this encompasses “occupation” of any space for any duration; a still smaller subset believes this includes a right to condemn Jews, all Jews.

I strongly doubt, however, that many of the protestors truly believe their constitutional protections extend to intimidation and bullying of Jewish students attempting to go about their business on campus (scroll to a few of the articles here), destruction of property, or the use of “fighting words”, or physical attacks on Jews or other “oppressors”.

It’s well known that the Constitution does not protect “fighting words”, including threats. Furthermore, Eugene Volokh explains that there is no constitutional right to “occupy” a college campus, either public or private.

Of course, private schools are not legally bound to respect free speech or assembly rights. They can regulate activity on their private campuses in any way they see fit. Some explicitly abide the same rights as public universities, which seems reasonable for any institution dedicated to the free spirit of inquiry.

Volokh, however, cites Supreme Court precedents in which a majority held that government can prohibit camping in certain parks, for example, and that public colleges and universities can impose restrictions on campus activities:

“There is no First Amendment right to camp out in any university, public or private. Indeed, there is no First Amendment right to camp out even in public parks (see Clark v. CCNV (1984)), and the government’s power to limit the use of property used for a public university is even greater than its power as to parks (Widmar v. Vincent (1981)):

“‘A university differs in significant respects for public forums such as streets or parks or even municipal theaters. A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.’

“Likewise, if UC Berkeley had held a law student party in the law school building rather than at Dean Chemerinsky’s house, it could have stopped students from using the party as an occasion to orate to the audience (especially with their own sound amplification devices, which the student brought to Chemerinsky’s house). See Spears v. Arizona Bd. of Regents (D. Ariz. 2019)(upholding public university’s right to stop people from speaking with sound amplification at an on-campus book fair).“

Volokh also notes, however, that public universities cannot restrict mere “offensive” expression, which would include certain antisemitic statements or even swastikas (for example), as long as the expression falls short of “fighting words” or explicit threats. Do calls for the “extermination of Jews” qualify as fighting words? That deserves a resounding yes. It’s clearly hate speech, and it’s exactly the sort of expression that might be deemed so offensive to counterprotestors (for example) as to constitute an immediate threat to public order.

Does the meaning of “fighting words” include such chants as “From the river to the sea…”? Some say that depends on the speaker, but that can’t provide a sound basis of distinction. It is clearly associated with calls to eliminate the state of Israel. Some believe it also implies the genocide of Jews in Israel, and Jews can’t be blamed for finding it threatening. Okay, how about “Intifada”? I doubt all of the students involved in the current protests understand the genocidal implications of these words. The agitators understand them well enough.

This is a grey area in our understanding of the First Amendment. The “River to the Sea” chant, and Intifada, seem like fighting words to me, but they might not qualify as direct threats to anyone on campus. By comparison, the swastika is “just” a party emblem, whatever policies it stands for, and apparently the Court did not deem it a direct threat to anyone in Skokie, Illinois. The legal distinctions here feel inadequate. Still, we say the “mere” expression of offensive ideas or symbols is protected speech, provided that it does not directly threaten harm to any party.

Many libertarians, with whom I usually agree, urge tolerance of the protests and encampments, including at least cautious tolerance of the protests. The Foundation for Individual Rights and Expression (FIRE) has strenuously objected to the actions of police in Austin, Texas in dispersing demonstrators at the University of Texas. Alex Tabarrak has reposted a tweet or two apparently critical of the government’s response to protestors in Texas and at Emory University in Atlanta, though it should be noted that the economics professor who was taken down and handcuffed on video had actually hit a police officer. Michael Munger, in a variation of his “worst enemy test” of government power, says that giving campus authorities “the power to crush us, at their discretion” is probably a bad idea. But they have that power if they choose to exercise it, for better or worse. (By “us”, I don’t think Munger intended to take sides).

I’m highly skeptical of the motives and incentives of some of the “occupiers” of campus spaces, not to mention their status as students. More importantly, there is ample evidence that “fighting words” and threats against Jews have been used by many of the protesters. This violates the codes of conduct at many schools, and should not only be censured, but any student identified as guilty of this sort of hate speech should be expelled, not merely suspended. There should be severe consequences for professors choosing to participate in these protests as well.

This behavior should have long-term consequences, and that is happening at some schools. I saw the following quote from P.J. O’Rourke on Instapundit, which seems appropriate here:

“There’s only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences.”

The kids are wearing masks for a reason, and it ain’t Covid! Now, the protestors’ demands include “amnesty” for their participation in the protests. That shouldn’t play well if you’re provably guilty of calling for the extermination of a race of people. But here’s the thing: certain institutions like Columbia University have allowed the aberrant behavior to go on with little challenge, showing that the real limits to free speech and assembly are whatever acquiescent campus administrators are willing to put up with.

Removing these encampments is more than justified on constitutional grounds at any school, public or private. The arrest of some of the more intransigent elements among the protesters may be well justified. Insulting hate speech is one thing, but eliminationist hate speech constitutes fighting words and should not be tolerated. Of course, forcibly removing the encampments is risky in terms of public safety because some of the protestors will physically challenge the police. Comparatively innocent (though naive) students might get caught up in a conflict with law enforcement, but ignorance is no defense. They should not be there. Those risks must be taken to end the “hate encampments”, which are a direct threat to the rights of others wishing only to go about their business.