The free speech issues that have surfaced in the wake of Hamas’s October 7 attack and Israel’s response are uniquely confounding to me.  As a First Amendment scholar, my job is to draw principled, meaningful lines between protected speech and unprotected conduct.  I have spent years thinking about academic freedom for students and professors, contemplating when professors have the freedom to express controversial views and when they have strayed into punishable territory.  I believe in strong First Amendment protections and free speech values.  I have long thought “cancel culture” is real and has chilled too much speech.  But these issues and this context have presented new challenges to anyone trying to think through them in a fair-minded way. 

In this blog, I attempt to address which speech deserves protection, what that protection should entail, and how we can move forward with a commitment to protecting all viewpoints equally.  If you disagree with where I have drawn lines, please do share.

First, let me give you a few, non-exhaustive examples of free speech issues that have arisen.

• Thirty-four student groups at Harvard signed a letter, soon after the Hamas attacks, condemning Israel and blaming Israel entirely for the attacks.  A direct quote from the letter reads, “We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.“ In response, the names of student leaders from these 34 student groups were released and the students were targeted.  Their names were displayed on a truck and several CEOs wish to blacklist them.  Some of the students were unaware that their student groups had signed this letter.  Many students who have expressed Pro-Palestinian or anti-Israel sentiment feel chilled in their speech.
  • Other students or student groups have written things more celebratory of Hamas (like the Tufts Students for Justice in Palestine), and a student at NYU Law, Ryna Workman, was fired from their job after sending a student bar association newsletter to the student body that started with “Hi Y’all” and then claimed Israel bears “full responsibility” for the attacks.  Workman was later video-taped defacing posters of Israeli hostages still in Gaza.
• An editor at an open-access, scientific journal was fired after he reposted a piece from the satirical The Onion whose headline was “Dying Gazans Criticized For Not Using Last Words To Condemn Hamas.”  The editor had a troubled history with the journal, especially related to his social media use.
• A teaching assistant at Cal Berkeley offered students extra credit for attending a pro-Palestinian walkout, before administrators said that was impermissible
• Medical professionals across the country have posted virulent anti-Israel and sometimes anti-Semitic things on social media, including that Zionists are demonic pedophiles.  Twitter accounts post these doctors’ social media statements, their jobs are informed, and the doctors and dentists are often fired.
• Professors have singled out Jews to sit in the corner, claimed that people should scare Zionist journalists and their families (with a knife and blood emoji), have tweeted that all Israelis are settlers, and have claimed to feel exhilarated by the change in the balance of power after the terrorist attacks.
• Universities who generally issue statements in the wake of major world events have stayed silent or declined to condemn the terrorist attacks.  University administrators have received significant criticism for this, and some donors have declared their desire to stop donating to elite institutions.
  • The President of the University of Pennsylvania has received significant attention because she permitted a Palestinian reading event that fostered speakers who have previously made antisemitic statements.
• Videos of students and others tearing down posters of Israeli hostages have gone viral.
• Pro-Palestinian rallies have included swastikas, anti-Semitic chants to “Gas the Jews,” and violence.  Jews had to hide in the library at Cooper Union as pro-Palestinian protestors banged on the doors.

First, let me get some easy issues out of the way. 

Tearing down or defacing posters is not free speech; that is the unprotected conduct of vandalism.  The best way for all relevant facts to reach society is to allow everyone an equal opportunity to put up posters (or reserve spots where there will be no posters).  Tearing down another’s poster censors views or facts one doesn’t like and is not permissible conduct in any speech-protective regime.  Students and others can be punished for tearing down posters.

Also, obviously, punching people and issuing direct threats are not protected by the First Amendment and can and should be punished.  The preservation of the bright line between protected speech and unprotected violence actually allows more speech to flourish.  Here, by “threats,” I don’t mean the vague and ominous but generally protected chants of, “Death to Jews,” or even swastikas held up at rallies.  Vile speech is still protected by the First Amendment.  However, threats that target particular individuals for particularized violence are not protected speech.   The professor who singled out “Zionist journalists” with the knife and blood emojis has issued something close enough to a true threat that her potential removal from UC Davis seems uncontroversial.  Indeed, if she had been permitted to keep her job, that would have created an atmosphere of fear for her students that would certainly chill speech and expression.

Now let’s get to the harder issues and some line-drawing.

First Amendment protections and academic freedom mean that students, especially students at public universities beholden to the Constitution, cannot be punished by the schools for their views.  Ryna Workman should not be investigated for their speech (they can be punished for defacing photos of Israeli hostages).  That said, the university, possessing its own free speech and academic freedom rights, should be permitted to disavow the statements and demonstrate that the statements, issued as part of a student bar association newsletter, do not form part of the university’s core values.  Certainly, Ryna Workman could be removed as student bar association president if they abused their power to express personal views not represented by the association– that  removal is not based on the content or views of the message but on not properly representing the group. 

Additionally, if Winston & Strawn wishes to disassociate itself from Workman, especially given the incoherence of their views (blaming every Israeli for a terrorist attack and then condemning Israel for “collective punishment’), that does not seem particularly detrimental to free speech values.  Private employers can fire employees for their speech [Edit- unless Workman was fired in a jurisdiction where a state statute prevents employers from firing employees for political speech, but presumably Winston & Strawn understands the legality of its action.].  Surgeons who publicly call people who support Israel Zionist scum who should be removed from the Earth perhaps shouldn’t be operating at major hospitals, where their obligation is to treat everyone equally and heal the sick regardless of identity.

The problem with “cancel culture,” is when people face excessive consequences for taking mild or moderate positions, thus chilling ranges of opinions on controversial and contested issues – like when a liberal composer was cancelled for condemning arson during the Black Lives Matter Protests.  Cancel culture is, in my view, unproblematic when people are fired (not expelled or punished by their university, which I think is wrong) for extreme or vulgarly expressed views, such as blaming Israeli babies for a terrorist attack.  I think it is reasonable to decry cancel culture while understanding that some statements are truly beyond the pale. We must be careful not to conflate all criticism of Israel with anti-Semitism while recognizing that some of it surely is.

Now let’s get to the hardest issues:

I do not support doxing or harassing students, no matter how inappropriate, scary, or poorly reasoned their views may be.   I disagree strongly with the truck going around highlighting the names and photographs of students who signed the Harvard letter condemning Israel after the Hamas attack.  School should be a place for experimenting with one’s voice. That said, the truck, unless it is inciting violence or lawless behavior (which it does not appear to be – although if it is highlighting students whose organizations signed the letter but the individual student did not participate in that decision, there could be a libel claim) also has a First Amendment right to be driving around with images on a public street.

The most difficult questions involve what universities owe to their students.  Many universities refused to condemn the Hamas murders, rapes, and hostage-taking.  Their institutional neutrality, which I generally support, seems quite hypocritical in light of the fact that they so often make statements condemning injustice, such as the murder of George Floyd or the invasion of Ukraine.  I hope universities who have remained silent on this issue decide permanently that, unless they need to disavow a student statement, they should get out of the business of issuing institutional statements.  Universities cannot represent the myriad opinions on any given issue and should be a place where students feel free to try on and explore different views.

Universities must protect their students from violence, but they cannot protect their students from the consequences of their speech, even though they cannot punish students for that speech.

Universities should be a place to really engage with facts and logic.  Universities have, especially in the last 10-15 years, done a poor job modeling how to charitably debate with one’s opponent and how to neutrally engage with issues instead of use motivated reasoning and selective use of facts to reach an ideological result.  Many of the professors universities have hired give students one-sided accounts of history and appear to teach students what to think, not how to think. Offering students extra credit for supporting a Pro-Palestinian walkout is contrary to the role of any university, especially a public one. However, these professors should not be fired now, unless they truly target students (like making Jewish students stand in a corner). Even horrifying views that every Israeli deserves punishment as a “settler colonialist” should be protected under academic freedom — although universities should really be screening professors more closely when hiring and promoting them for the rigor of their logic.

Students should receive training on how to understand multiple perspectives and engage with inconvenient facts.  Instead of consistently reaffirming a commitment to subjective notions like social justice, universities should reaffirm their commitment to teaching students critical thinking and the formation of principles that can be rigorously and fairly applied.  Now is the time for universities to protect the speech of all of their students, whether it is pro-Israel or critical of Israel, but also a time for universities to note their own hypocrisy in standing up for some vulnerable groups and not others.