In recent weeks, college campuses have seen wide-ranging protest and speech, some espousing unpopular viewpoints. There have also been instances of targeted harassment and bigotry.
The debates and protests roiling university campuses over the ongoing Israel-Palestine conflict are emotional and painful for those taking an opposing view. In a contest to score political points at last week’s hearing with three university presidents, however, congressional representatives ignored bedrock principles of free speech. Invoking “free speech,” some of these elected officials unproductively conflated protests intended to influence United States foreign policy with the harassment, religious bigotry, and racism that some students and faculty have experienced.
The ACLU of Pennsylvania categorically condemns threats of violence, as well as bigotry directed at any group. We also stand, as we always have, on the side of free and unfettered political speech, even when that speech seems intolerable to some.
Even though the three universities on the hot seat are not state schools, and thus not subject to constitutional safeguards, First Amendment principles should nonetheless guide them, and us. In fact, the University of Pennsylvania has policies that commit the school to First Amendment principles. Unfortunately, the congressional calls for categorical censorship of positions that some people don’t like are patently unconstitutional and profoundly unwise for the future of our democracy.
There are plenty of instances of speech on college campuses today that are uncomfortable or offensive. Yet speech does not lose First Amendment protection simply because it offends. Flag burning is offensive to most Americans, yet the Supreme Court considers it protected political speech. Offensiveness is not and cannot be the standard to allow censorship; if it was, we would all be at the mercy of our leaders, who could decree anything they don’t like to offend them and thus be illegal.
To be clear, targeted harassment or actionable calls for violence are examples of speech that is not constitutionally protected. This is why administrators should consider the facts on the ground – the "context" – instead of making decisions based on hypotheticals or “gotcha” questions. The university presidents spoke about context because it is an important factor in evaluating whether the expression is constitutional. For example, a statement at a large rally may carry more protection than the same statement yelled at an individual or at a gathering by a student mob outside a dorm room, which may well be punishable harassment or a true threat.
Simply decreeing that political speech criticizing our government or any other nation or group of people is illegal will lead us down a perilous path. We must embrace free speech, even when it’s offensive and hurtful, while taking care to ensure that speech that rises to the level of true threats, incitement to imminent unlawful action, or targeted harassment is addressed in an appropriate and proportional way. The path taken by several members of Congress last week, simply calling for categorical censorship, will not solve our problems, but it will undermine valuable freedoms that we will need and want in the future.
We cannot lose sight of the fact that, especially during such turbulent times, honoring our commitment to free speech is more vital than ever. The nation’s commitment to free speech played an important role in the civil rights, suffragist and gay rights movements. We are witnessing its importance in today’s activism to restore reproductive freedom.
As tensions mount and our elected officials show less commitment to the rule of law, we will need these constitutional protections. But they will only survive if we commit to supporting them.
