How campus protests flip-flopped America’s free speech debate

The battle lines over free speech on college campuses were largely entrenched before pro-Palestinian encampments rapidly spread across the country last month.

Professors or speakers who broke with prevailing progressive points of view — particularly around issues of race, gender and social justice — were often subject to losing their job or other forms of “cancel culture.”

This left conservative voices on campus and in Congress positioning themselves as the defenders of free speech and, somewhat paradoxically, champions of liberal values around the need for open debate in America’s bastions of higher learning.

The Hamas-Israel war has scrambled these dynamics, said Alex Morey, vice president of campus advocacy at the Foundation for Individual Rights and Expression (FIRE).

“Free speech hypocrisy has been the name of the game on campuses for a long time,” Morey told The Hill. “We’re used to seeing that kind of hypocrisy on the left, but now it’s flip-flopped.”

FIRE estimates that almost 200 professors have been fired for various speech-related offenses since 2011, and there are many more examples of progressive student groups pushing to cancel appearances from right-wing figures on campus.

The GOP-led House has regularly held hearings deriding what they view as the suppression of conservative viewpoints and demanding that universities preserve “the constitutional rights of all students to freely express their beliefs,” as the chair of the House higher education subcommittee put it before a March hearing.

In recent months, however, House hearings about college campuses have focused instead on various ways to suppress speech deemed antisemitic or “pro-Hamas” — as protesters rail against U.S. support for Israel’s war in Gaza, as well as the Zionist movement they blame for the historical oppression of Palestinians.

“For a decade, conservatives have been crying foul on that,” Morey said of curbing free speech.  “Until you get to post-October 7. And now people are saying ‘From the river to the sea’ or ‘Intifada’ or ‘Free Gaza’ — and a certain crop of conservatives don’t like that. And now suddenly, we have found their free speech limit. They don’t really mean ‘free speech,’ they mean ‘free speech until it’s speech I don’t like.’”

Rep. Mike Lawler (R-N.Y.), who last year introduced the Antisemitism Awareness Act to combat what he described as a “disturbing and unacceptable” level of antisemitism on college campuses, told The Hill he sees no contradiction on the GOP side.

“I think what is fascinating to watch obviously, is many of the same people who were saying that these protests should be protected under free speech are the same people who demanded safe spaces on universities and college campuses because they were deeply offended by conservative thought, and thought to ban conservatives from speaking on college campuses,” he said.

Lawler said his legislative effort was meant to ensure that federal law — specifically Title 6 of the Civil Rights Act of 1964 — is enforced as it relates to Jewish students. Title 6 bars federally funded universities from discriminating against students on the basis of race or religion.

“Yes, protests are allowed. But when those protests, where debate crosses the line into violence, whether threats of violence or actual physical, [universities] have a responsibility. And that’s the point here. And unfortunately, these institutions have failed in that responsibility miserably,” he said.

Even free speech absolutists agree that direct threats against individuals are not protected under the First Amendment.

But where universities — or the federal government — draw the line between protected debate and “threats” is tricky. That was vividly illustrated during a December House hearing, when leaders of some top universities equivocated on whether calling for the genocide of Jews would violate their policies.

“The actual correct answer to those questions is not what Congress wants to hear,” said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “The answer was, ‘It depends.’ And that’s the right answer. It does depend. If someone’s holding a sign at a protest, that should be protected speech under the written policies of the schools. And if someone is shouting it at another student, then it should violate those rules and civil rights laws.”

The equivocation by the presidents, however, was a big political success for Rep. Elise Stefanik (R-N.Y.), whose question elicited the uncomfortable responses. More university presidents were called to Congress on Thursday to face similar questions.

Wizner said Jewish students who feel uncomfortable or unsafe because of some protest slogans, such as calls for an uprising against Israeli control of Palestinian territories, do not have a right under Title 6 to not be offended. But they should have protection from “pervasive discrimination.”

But just where that line should fall is a debate, even among Republicans.

Lawler said slogans such as “From the river to the sea” were clearly antisemitic threats that should not be allowed. But Rep. Nicole Malliotakis (R-N.Y.), who has also proposed legislation to crack down on anti-Jewish hate speech, said such slogans were protected in her view.

“I think it falls on the free speech side, but I think it is antisemitic,” she said. “It really depends.”

Her bill, the Combating Antisemitic Messaging and Promoting Unity in School Act, would strip federal funding from higher education institutions that support antisemitic groups or fail to take action against faculty members who espouse antisemitism. Malliotakis said the measure is specifically meant to target racial slurs, violent acts and swastikas.

“It’s terrible that a student has to go to campus and see a swastika. And if that student or professor who painted the swastika isn’t held accountable, that’s a problem,” she said.

Protest leaders say claims that their broader message is antisemitic are misguided, and fail to account for the large presence of Jewish students at their encampments and rallies.

“We’ve seen Jewish students in the encampments who held Shabbat services and Passover Seders with their peers,” said Beth Miller, political director at Jewish Voice for Peace Action, which has helped organize cease-fire protests. “It is not antisemitic to criticize the Israeli government or to protest complicity in genocide.”

Yazen Kashlan, a graduate student at University of California, Berkeley who helped organize its encampment, criticized figures on the right for “throwing around” the term.

“It does a disservice to people who are actually suffering from straight-up antisemitism, where it’s just purely religious-driven,” he said.

“That’s not what we’re protesting against. Like it’s not Jewishness that makes us do this. It’s imperialism, racism, colonialism — like, I always say this: If the occupiers were Dutch or Filipino or West African, the response would be the same.”

President Biden has defended the right of students to speak out but said violence on campuses will not be tolerated.

“Vandalism, trespassing, breaking windows, shutting down campuses, forcing the cancellation of classes and graduations — none of this is a peaceful protest,” he said in remarks last month.

Instances of physical violence have been few and far between, however, apart from when police have swept in to arrest protesters who refuse to leave encampments. Some of the worst violence in recent weeks occurred when pro-Israel protesters stormed a pro-Palestinian encampment at the University of California, Los Angeles (UCLA).

The Anti-Defamation League (ADL) has been a leading voice urging universities to crack down on campus protests. A spokesperson for the group said they were not asking for disciplinary action based on offensive speech alone.

“Jewish students have had their access to class and university events disrupted, have been harassed and intimidated and have even faced violence. That’s what ADL wants universities to address — harassment and intimidation,” they said.

The group pointed to a half dozen examples of such behavior. These included protesters creating a human chain at UCLA; protesters at Columbia University blocking “Zionist” students from entering areas on campus near encampments; the head of the Jewish studies center at the University of California, Irvine halting lectures due to disruptions from protesters; the president of Jewish Students for America claiming he was assaulted while filming an encampment; and antisemitic graffiti sprayed at Bradley University in Illinois.

There was also an incident at the University of California, Berkeley in which pro-Palestinian protesters gathered outside a theater during an event featuring an Israeli soldier who had served in Gaza. The speech was canceled as a result.

Kashlan, the graduate student, said he generally encouraged fellow students to allow for dissenting viewpoints, and to trust that the “vileness of their statements” will be obvious to anyone listening. But he said he understood the emotional reaction when the stakes feel so high.

“This is a person who was part of an offensive force that is actively dropping bombs. So like, OK, people are going to show up, they’re going to show up in masses,” he said.

Kashlan said the reaction to the protest was also revealing. “Everyone’s ready with their phones to show that they’re being suppressed by the other side. So it’s kind of a s–t show this way.”

David Myers, a professor of Jewish history who directs UCLA’s Initiative to Study Hate, said he wants to see both sides engage in another debate: What are the norms that facilitate knowledge and learning?

“Like, yes, you can be needlessly provocative. And that’s protected speech. But what makes for a constructive conversation?” he said.

“There’s not an armed insurrection where one side is seeking to overthrow another and engages in any means necessary. This is a protest on a college campus in the United States of America. I think it’s entirely possible to proceed with one’s objectives without crossing the line into rhetoric that is either dangerous or antisemitic.”

Myers blamed both sides for how hard it has become to have respectful debates about tough subjects at U.S. universities.

“There’s been a growing sensibility that says you know, if I disagree with you, I regard you as not just a foil or partner in conversation, but the enemy, the embodiment of evil. I think that spirit, on the left as well as the right, has made it really difficult to have difficult conversations, which we should be doing on our campuses.”

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