Freedom of speech protects speech that is both loved and hated. The United States Supreme Court instructed in Terminiello v. Chicago (1949), “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
But like all other rights, freedom of speech has limits. Evenhandedly applied and reasonable time, place and manner limits are acceptable — for example, prohibiting picking outside homes in a residential area at 3 a.m. or blocking pedestrian or vehicle traffic. Viewpoint-based restrictions, however, are suspect, such as permitting protesting Hamas terrorism but forbidding protests against Israeli actions in Gaza.
The Supreme Court set forth the standard between protected and unprotected speech in Brandenburg v. Ohio (1969): “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
On elite college campuses across the country, have protests crossed the imminent lawless action line of Brandenberg? Or have they violated reasonable time, place and manner restrictions?
Take Columbia University. Tents and an encampment trespassed on university property to protest an alleged Israeli genocide of Palestinian civilians in Gaza, a charge that is pending before the International Court of Justice. But why were the protestors silent over the Chinese genocide of Uigurs or Myanmar’s genocide of the Rohingya? Does that skewed response betray antisemitism or other ulterior motives?
The protests often call for a “third intifada” or “uprising,” a term that terrorist organizations in the Middle East use as synonymous with violent terrorism directed at Israel. The first intifada ran from 1987 to 1993 and the second from 2000 to 2005. More than 1,100 Israelis were killed in Palestinian terrorist attacks during the second. But is a third intifada imminently likely to unfold with Hamas decapitated in Gaza?
The Hezbollah terror flag was displayed in Princeton. Hezbollah was responsible for the bombing of Marine barracks in Beirut in 1983 killing 241 U.S. military personnel. Is the flying of such a flag illegal? The U.S. Supreme Court has held that burning American flags is protected by the First Amendment in Texas v. Johnson (1989) and United States v. Eichman (1990).
At Yale, a Jewish student journalist was stabbed in the eye by a Palestinian protester with a Palestinian flag, the crime of assault. Furthermore, incidents have been reported nationwide in which Jewish students are intentionally barred from accessing campus property, which is also a crime of false imprisonment or blocking a thoroughfare. The incidents would constitute hate crimes with proof that the victims were selected because they were Jewish.
A credible threat to kill a Jew is also criminal. Creating a hostile education environment based on race or religion also violates Title VI of the Civil Rights Act. New York Governor Kathy Hochul tweeted in December, “Calls for genocide on college campuses violate New York’s Human Rights Law, Title VI of the Civil Rights Act, & SUNY’s Code of Conduct. We’re prepared to take enforcement action if colleges & universities are found not in compliance.”
The United States Supreme Court has held that Title VI creates an implied private right of action enabling victims of racial or religious discrimination on campus to sue the violators for damages or injunctive relief.
Hundreds of protestors have been arrested throughout American colleges and universities. Most received a slap on the wrist and returned to protest immediately. Private Title VI suits are necessary to deter and to discover the ulterior motives and hidden funders of the anti-Israeli protests.
We need to strictly punish illegalities while protecting speech we hate short of inciting imminent lawless violence. Freedom of expression is often cathartic and prevents violence. Students should be resilient to name calling remembering the rhyme, “Sticks and stones may break my bones, but words will never hurt me.”
Armstrong Williams (awilliams@baltsun.com; @arightside) is a political analyst, syndicated columnist and owner of the broadcasting company, Howard Stirk Holdings. He is also part owner of The Baltimore Sun.
