Protests against the Israeli war in Gaza are engulfing private and state-run universities across the country, from Columbia University to UCLA to the University of Texas at Austin, with more than 2,500 protesters from almost 50 campuses already arrested.
Reactions to footage of police marching in riot gear to break up the encampments and detain students and professors have been sharp. Even critics of the protesters’ agenda — and most of what we’ve heard the protesters say is repugnant — have decried the arrests as violations of free speech. Some defenders of the police actions concede the point: to them the need to quell campus protesters just shows that free speech rights are “not absolute.”
Wrong. It’s precisely because all rights, including the right to free speech, are absolutes that many of these protests are justifiably shut down by the police.
The right to free speech protects everyone’s ability to express ideas — even the most vicious of ideas — to anyone who chooses to listen. It protects this expression against anyone who would forcibly interfere, whether a government bent on censoring a book praising Marx and Mao, or a racist mob that destroys the printing presses of a newspaper speaking up for justice. We each need to be able to express and listen to ideas of our choosing — even false ideas — if we are to rationally search for the truth.
The First Amendment prohibits government from enacting laws that violate anyone’s freedom of speech. It imposes no restrictions or obligations on private individuals or organizations, such as Columbia University.
Students choose a university like Columbia to get an education from its professors, not to be subjected to political harangues from other students. To advance its educational mission, Columbia rightly needs to set rules about how its property is used and which viewpoints are taught on its premises. When a mob of students and non-students invades the Columbia campus, sets up an encampment on its quadrangle, creates a nuisance that interferes with the business of education, and even bars other students and professors from entering and attending classes, these protesters are interfering with the property and free speech rights of the university. Columbia didn’t have to wait for protesters to break into Hamilton Hall to justifiably have the police eject them.
Of course, a student paying good money to attend a private university like Columbia may object that the university is not enforcing its officially stated rules equally and unbiasedly, permitting some student protests that break the rules while disbanding others. Does anyone seriously think that if the Columbia protests were not pro-Hamas but pro-Confederacy, they would have been allowed to continue for this long? But that is a contractual complaint, to be settled ultimately in civil court. It is not a First Amendment issue.
State-run universities like UCLA and the University of Texas at Austin are crucially different: the Supreme Court has ruled that they are subject to the First Amendment. There is much to criticize in the Court’s interpretation here of the First Amendment, including its expansive views on which types of “public property” should be treated as a “public forum” for expression. But for now these decisions have the force of law.
When areas of a state-run campus like quads are deemed “designated public forums,” a state-run university cannot restrict the content or viewpoints expressed by protesters. It cannot even restrict who can protest: non-students may show up. In such forums, the university can set reasonable time, manner and place conditions on expression, consistent with its purpose of functioning as an educational institution. Protesters are not entitled to physically disrupt wider campus life, and should be swiftly arrested when they do so.
In the aftermath of the barbaric riot at UCLA among protesters and counter-protesters, part of what is rightly under investigation is why campus and local police did not intervene sooner. Likely this is the result of deferring to the expansive “public forum” doctrine, and points to what’s wrong with that doctrine and its roots. Opening a public space for protesters to express any viewpoint, and for counter-protesters to oppose them, creates an atmosphere that by its nature disrupts the educational function of a university.
By contrast, at UT Austin what is now in dispute is whether the protesters were violating reasonable time, manner and place restrictions, or were victims of a content-based restriction. UT Austin contends that the protesters were violating the former. Critics like the Foundation for Individual Rights and Expression (FIRE) argue that the protesters were not and that the university is in fact violating the First Amendment. FIRE cites as part of its argument an April 24 tweet from Texas Governor Abbott announcing arrests on the grounds that “Antisemitism will not be tolerated in Texas. Period.”
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As awful as antisemitism is, government’s business is not to take sides on questions of ideology. Private institutions can eject students for expressing antisemitic content. But a state-run university cannot. It can only stop those who violate time, manner and place conditions in public forums — indeed, it must do so in order to protect the rights of non-protesters. And absent an expansive “public forum” doctrine, UT officials would have had ample ground for expelling protesters immediately on the ground that the purpose of its campus is education, not political demonstrations or brawling.
The right to free speech is not a value to be “balanced” against law and order. The only valid purpose of law and order is to protect the rights of citizens, including their rights to property and to free speech, which the government must treat as absolutes. When government itself violates these rights, as it may have at UT Austin, it should be rebuked.
But when it intervenes to protect these rights, as it did at Columbia and should have done sooner at UCLA and elsewhere, it deserves praise.
Onkar Ghate, Ph.D. in philosophy, is a senior fellow the Ayn Rand Institute, and a contributor to The First Amendment: Essays on the Imperative of Intellectual Freedom (forthcoming). Ben Bayer, Ph.D. in philosophy and formerly a professor, is a fellow and director of content at ARI.