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Does SJP have the right to free speech?

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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.

Radhika Sainath

Radhika Sainath is a staff attorney at Palestine Legal and cooperating counsel at the Center for Constitutional Rights. Follow her on Twitter at @radhikasainath.

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18 Responses

  1. pabelmont on October 31, 2014, 11:01 am

    Beautiful, as a challenge to oppression (on campuses of public universities) and as a legal brief. And, as a legal brief, quite refreshingly short.

    I think I’d like to see, in addition, just a little something about suing public officials for depriving students of well-established constitutional rights under section 1983:

    Besides authorizing official capacity suits against state and local officials for structural injunctive relief, 42 U.S.C. § 1983 authorizes claims against those officials in their individual capacity for compensatory and punitive damages. Although, as discussed above, the Eleventh Amendment limits official capacity claims against state officials to prospective injunctive relief, it does not affect damage claims against those officials in their individual capacity./1/ In this section, we discuss when absolute and qualified immunity limits individual capacity suits against public officials.


    What I have in mind is informing SJP students that when they encounter infringements on their expression on campus, they inform the university administrations that there are (personal?) costs for injuring people’s constitutional rights. I must add that I have not reviewed caseslaw on section 1983.

  2. JLewisDickerson on October 31, 2014, 1:36 pm

    RE: “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’.” – Radhika Sainath


    ● “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” ~ Whitney v. California, 1927

    ● “No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion. Only an emergency can justify repression.”

    ● “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.”

    ● “The constitutional right of free speech has been declared to be the same in peace and war. In peace, too, men may differ widely as to what loyalty to our country demands, and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has been in the past, to stamp as disloyal opinions with which it disagrees.”

    SOURCE –

    • JLewisDickerson on October 31, 2014, 1:55 pm

      P.S. FROM WIKIPEDIA [Whitney v. California]:

      [EXCERPT] . . . The Whitney case is most noted for Justice Louis Brandeis’s concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.[1] Justice Brandeis and Justice Holmes concurred in the result because of the Fourteenth Amendment questions, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority and supported the First Amendment.
      Holmes in Abrams had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” But Brandeis had a much more specific reason for defending speech, and the power of his opinion derives from the connection he made between free speech and the democratic process. Citizens have an obligation to take part in the governing process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not only an abstract virtue, but a key element that lies at the heart of a democratic society.
      Implicitly, Brandeis here moves far beyond the clear and present danger test, and he insists on what some have called a “time to answer” test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion. While upholding full and free speech, Brandeis tells legislatures that while they have a right to curb truly dangerous expression, they must define clearly the nature of that danger. Mere fear of unpopular ideas will not do.

      SOURCE –

    • JLewisDickerson on October 31, 2014, 2:06 pm

      GO FIGURE! ! !

      • MHughes976 on November 3, 2014, 12:15 pm

        According to Margaret MacMillan’s invaluable ‘Peacemakers’, (p.433) which I mention often here, Brandeis supplied the ingenious reasoning why self-determination, as normally understood, did not apply in Palestine: all people who were Jewish anywhere in the world belonged in the territory and should be considered enfranchised there. These powerful minds, you know, they can come up with all manner of ideas.
        On Balfour Anniversary Day + 1 it’s worth recalling Woodrow Wilson’s starry-eyed ‘To think I, the son of the manse, should be able to help restore the Holy Land to its people’, mentioned by MacMillan on the same page. It was almost exactly 300 years since Christian Zionism had hit the bookstalls in the work of Sir Henry Finch.

  3. Mooser on October 31, 2014, 7:28 pm

    “Over 40% of Jewish American college students report that they have experienced or are aware of anti-Semitism on their campuses.”

    • on November 1, 2014, 9:39 am

      100% delusion.

    • Mooser on November 1, 2014, 12:47 pm

      Jeez, how long til somebody stands up and says: “And what do you think it’s like for us?”

      Who are they comparing themselves to? Are they friggin’ blind? Or is there just an assumption that nobody except Jews ever experiences any discrimination, discomfort or danger from prejudice?
      And all this while bragging about Jewish accomplishment in America, too. Consider my mind boggled. Sorry for the outburst. As Dickerson says: “Go figure”. I can’t.

    • pjdude on November 1, 2014, 1:39 pm

      and how much you want to bet that the vast majority of that so called anti semitism is actually people being critical of Israel’s illegal and decidely terroristic behavior. there is real anti semitism in this world and zionist help it along by obscuring it with their crybabiness on Israel

  4. martingugino on October 31, 2014, 9:04 pm

    Since this is California, the state constitution is also relevant. (Pruneyard v Robbins)

  5. Jim Holstun on November 1, 2014, 2:32 pm

    What about free speech for disgusting, Zionist supporters of occupation and ethnic cleansing? For out-and-out war criminals? As always, the extreme test case is important. Frequently, occupation opponents stand up and walk out, creating a mild disruption. Sometimes, they shout out, creating a more significant interruption. Does their side get free speech too? I mean, even if their side has just turned the Islamic University of Gaza into rubble?

    Yes, they do. Given that we have the truth and justice on our side, disruption is unnecessary, and it would be more effective in the short run and the long run to study up and ask hard questions. Anything that allows you to feel righteous about not reading more is a clear and present danger.

    The test case for the test case, however, is the increasingly typical quasi-academic appearance, whereby speakers get to screen questions. This is a violation of academic freedom (I have been told by specialists at AAUP). And then, all bets are off. Disrupt away.

  6. just on November 1, 2014, 4:36 pm

    Thank you Radhika Sainath.

    This needs to be plastered all over the NYT, Wapo, LAT, and on teevee.

    I’ll just wait for it.

  7. traintosiberia on November 1, 2014, 6:36 pm

    Reported by Gilad Atzmon

    :The President of CRIF, . Roger Cukierman was cited for remarks he made in an interview on Europe 1 in which he called Dieudonne Mbla Mbla, – France’s No 1 comedian, a “professional anti-Semite.”.

    I dont if it is true .But would be interesting if that were the case.

    • annie on November 1, 2014, 9:13 pm

      would be interesting if that were the case

      why? those allegations have been made about dieudonne repeatedly.

      edit: never mind, i see you meant the accuser had been indicted. that is surprising.

      • just on November 2, 2014, 7:35 am


        the times, they are a- changin’ for sure.

        can a quenelle just be a quenelle again?

      • traintosiberia on November 2, 2014, 12:01 pm

        But UK has decided to put someone in jail for “antisemitic remarks” heard on a bus per Haaretz.

        Sometime I wonder if these “violations” say more about the perpetrator and the target than they do actually about the content of the speech?

        Chances are an antiwar message from a Muslim will trigger a terrorism charge and criticism of Israel will trigger an accusation of antisemitism.

  8. Pippilin on November 3, 2014, 12:23 pm

    If I recall correctly, the UK does not have the same constitutional free speech protections as does the US.

    • MHughes976 on November 3, 2014, 2:17 pm

      There are quite a few incidents like this, usually about white or black skin, in which someone starts screaming abuse in a public place, every year here in the UK. We do have free speech embodied in the Euro Human Rights convention but this sort of thing is regarded as public disorder rather than simply expression of opinion. Would this behaviour be permitted in the United States?

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