Are Anti-Israel Protests Protected by the First Amendment? | Opinion

The virulent anti-Israel protests on campuses and on the streets have once again raised the question of whether there are limits to freedom of speech. This age-old question recurs every time protests become dangerous and raise the possibility of violence.

The Supreme Court of the United States has tried hard over the last century to draw the line between protected speech and unprotected incitement to violence. Current law protects advocacy of violence, but not immediate incitement to violence. This line is anything but clear. As Oliver Wendell Holmes put it a century ago: "Every idea is an incitement." Yet the courts have tried—not always successfully—to distinguish between advocacy and incitement, without favoring some ideas over others. As the Supreme Court put it in 1990: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas."

Marxists can advocate illegal overthrow of the government by force and violence as long as they do not immediately incite such violence. Hamas supporters can call for the end of Israel, but they can't incite an angry crowd to kill a specific Jew or Zionist. I had a case in the 1970's in which my client, a Stanford literature professor, spoke to a group of students, telling them it would be a good idea to take over the computation center which was helping the war effort in Vietnam. The students immediately followed the professor's admonition and unlawfully occupied the center, destroying parts of it. Stanford, being a private university, was not bound by the First Amendment, and so it fired the professor without directly addressing the question of whether his speech would have been protected by the First Amendment if Stanford had been a public university. Similarly difficult cases have resulted in different outcomes during the past 30 years.

The despicable and immoral pro-Hamas protests that are plaguing American universities today include some protected advocacy and some unprotect incitement, as well as some close questions. Because Hamas is a designated terrorist group, it is a crime to provide it with "material support," and courts have differed as to the meaning of "material." Verbal support alone is not enough, but collecting money for Hamas is. Harassment of an individual student—such as that which occurred at Harvard—is not protected, especially if it involves any physical contact or direct threats. Creating a "hostile environment" presents a difficult issue, since such an environment can be created by constitutionally protected speech.

One major problem on many of today's campuses is that anti-Israel and anti-Semitic speech is often not disputed by "the competition of other ideas." Pro-Israel speakers, even those who advocate a Palestinian state living in peace with Israel—as I do—are not invited to speak on many campuses. At the University of California Law School at Berkeley, several clubs have amended their rules to prohibit any Zionists to speak and present "other ideas" than ending Israel. The marketplace has been closed to pro-Israel advocacy. This selective censorship is not consistent with the First Amendment, but it is demanded in the false name of "Diversity, Equity and Inclusion (DEI)."

The DEI movement is against diversity of opinions, equality of ideas and inclusion of Zionists and Jews. Its idea of free speech is "speech for me but not for thee." DEI has become the enemy of free speech, due process, and Jewish Students. Yet its influence on many university campuses has grown dramatically, as DEI bureaucracies have taken over decision making regarding campus speech and discipline.

Many woke students, faculty, and administrators are opposed to free speech. They believe that speakers with views different from theirs should be shut down, as the Stanford chapter of the National Lawyers Guild shut down a conservative judge. But they demand an expansive definition of free speech for pro-Hamas demonstrators who harass, threaten, and create fear for many Jewish students. This double standard is unacceptable under any view of the First Amendment and the open marketplace of ideas, and no university should tolerate it.