Does SJP have the right to free speech?

It is a well-established principle that public universities are bound by the First Amendment. You might not know this from talking to students who are speaking out for Palestinian rights. In the past eight months, I have given 15 know-your-rights workshops to students from nearly 70 different universities. I just gave a workshop at the National Students for Justice in Palestine (SJP) Conference in Boston over the weekend – an inspiring, record-breaking gathering of students dedicated to using their free time to work for freedom and equality. Despite my extensive conversations with SJPers, I continue to be surprised at the level of repression these students face from their administrations.

Students at state schools have a constitutionally protected right to freedom of expression. The Supreme Court made this clear when it held in Widmar v. Vincent (1981) that “our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”

This means that SJP has the right to hold theatrical actions representing Palestinian lives lost in Israel’s attack on Gaza, or invite a Palestinian author to speak about Israeli apartheid – even if some may disagree with the message or tactics of such events.

The Supreme Court underscored this principle in Terminiello v. Chicago (1949), when it stated that free speech  “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.”

You would not know that students have the right to criticize Israel from speaking to SJP members, however. University administrations at far too many campuses are intimidating or suspending them into silence.

In the past calendar year, SJP chapters at state universities across the country have reported being told that they need to dilute their message, that they can’t use the word “Palestine,” that they must be “civil” in their speech and have been pressured to “dialogue” with Zionist groups that do not share their principles of justice and equality. Students have experienced excessive delays getting approval for their events and have been charged high fees for security they do not want at their events. Administrations have told SJP members that requested rooms are taken when they are in fact available, that certain halls are designated for “non-controversial” programming and have required SJP members to provide extensive bios for their speakers and scripts of what students will say at their actions.

Student groups at public and private universities are also routinely accused by Israel advocacy groups of creating unsafe and threatening environments for Jewish students simply by putting on events that are critical of Israel’s policies, which the university is then obligated to investigate.

Since Palestine Solidarity Legal Support was launched in January 2013, we’ve documented dozens of incidents of speech violations at public universities, and many more instances of unequal treatment at private universities. We believe these numbers are only the tip of the iceberg.

This repression is not only alarming, but is often unconstitutional when undertaken by public university officials.  Recently, a number of Israel advocacy organizations have been pressuring universities to condemn certain viewpoints, monitor student expression or activism, and in some cases, to censor or punish students or faculty who are supportive of Palestinian rights or critical of Israeli policies.

These aggressive campaigns disguise efforts to stifle constitutionally protected speech by mislabeling speech that criticizes Israeli policies as hateful and anti-Semitic and therefore, subject to condemnation and suppression.

The U.S. Department of Education’s Office for Civil Rights (OCR) has soundly rejected allegations that expression criticizing the state of Israel or advocating for Palestinian human rights is harassment or intimidation that targets and creates a hostile educational environment for Jewish students on the basis of race or national origin. To date, no such complaint has been sustained or found to have legal merit. Rather, OCR’s decisions have confirmed that students are free to engage in creative activism that relates to an issue of public concern.

Nevertheless, accusations continue to proliferate, and result in universities’ increased scrutiny of speech critical of Israel’s policies.  This over-bearing scrutiny threatens to shut down robust debate on one of the most urgent moral and political questions of our time.

Needless to say, students supporting Israel’s policies do not face the same kind of harassment and intimidation from administrations when they invite Israeli soldiers, consular officials or anti-Palestinian ideologues to speak. Only proponents of one side are regarded with undue suspicion and distrust, despite their entirely peaceful and justice-oriented approach to the issue. And it is no accident that it is often the Palestinian, Arab and Muslim students who face the most scrutiny and repression.

In my workshops, I tell students that college administrations are obligated to protect their rights to speak out for justice in Palestine. But what the First Amendment requires and what happens in practice are two different things. In the meantime, Palestine Solidarity Legal Support and its partners will continue to assist students whose speech is chilled, censored or otherwise suppressed because of their views supporting Palestinian freedom.