Where Free Speech Ends and Lawbreaking Begins

[Valin]

The Free Press

The First Amendment does not give carte blanche to intimidation and harassment, writes Ilya Shapiro.[/]

 Ilya Shapiro

November 27, 2023

Even antisemites have the right to free speech, as Nadine Strossen and Pamela Paresky correctly wrote in The Free Press. Since the Hamas massacre of October 7, they have been taking full advantage of that right. Especially on college campuses.

Pro-Palestinian groups have harassed and even assaulted Jewish students; protesters have interrupted courses and taken over buildings; Ivy League professors have called Hamas’s attack “exhilarating” and “awesome”; students have torn down posters of missing Israeli children; others have chanted—and even projected onto university buildings—slogans, like “from the river to the sea,” “globalize the intifada,” and “glory to our martyrs.”

In response to such activities, universities have suspended or banned student groups like Students for Justice in Palestine. Alumni have pulled their donations and publicly stated that they won’t hire students who signed letters blaming Israel for the massacre. Republican lawmakers have suggested revoking the student visas of those participating in anti-Israel protests.

Those who care deeply about free speech are asking themselves many questions at this urgent moment: What should we make of the calls to punish Hamas apologists on campus? After all, this is America, where you have the right to say even the vilest things. Yes, many of the same students who on October 6 called for harsh punishment for “microaggressions” are now chanting for the elimination of the world’s only Jewish state. But Americans are entitled to be hypocrites. 

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What if an institution knows that Jewish students are being threatened and does nothing, or creates impotent task forces without addressing immediate threats? Or what if officials take ideological sides (like an administrator at the University of Chicago who marched with SJP protesters) or egg on a mob shouting down a speaker (like Stanford Law’s DEI dean at Judge Kyle Duncan’s event in March)? 

This is where Title VI of the Civil Rights Act comes in.

Title VI prohibits any entity that receives federal money (including student loans) from discriminating on the basis of race, color, or national origin, which the Department of Education’s Office for Civil Rights (OCR) understands to include “actual or perceived” ancestry, ethnicity, and religion. 

As part of the launch last May of the Biden administration’s national strategy on antisemitism, OCR issued guidance to remind K–12 and higher-ed schools of their legal obligation under Title VI to address complaints of discrimination, including harassment, based on Jewish ancestry. “The Department’s most important tool to fight against antisemitism,” Secretary of Education Miguel Cardona reiterated this month, “is Title VI.”

So the legal landscape is ripe for both administrative complaints and lawsuits alleging that all these hand-wringing academic grandees have failed to address the very real threats to the physical safety of Jewish students. At Cooper Union, a staffer locked Jewish students in the library for their own protection in the face of demonstrators shouting, “Free, free Palestine.” I’m not sure offering Jews a chance to hide in the attic satisfies Title VI.

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Some prominent alumni have suggested that businesses not hire students who have joined statements in favor of Hamas. Isn’t that participating in cancel culture?

A dozen CEOs pledged not to hire the Harvard students who signed an open letter blaming Israel for the attack on itself. Independent journalists have taken to publicizing the names of students who engage in antisemitic speech and behavior. Law firm Winston & Strawn rescinded its offer to NYU Law’s student body president, who sent a campus-wide anti-Israel statement—and then later was caught on camera tearing down posters of kidnapped Israelis.

I don’t think that any of this qualifies as cancel culture, at least if one defines that term as (1) forming a mob (2) to seek to get someone fired or disproportionately punished (3) for statements within the societally permissible range of policy views. 

Perhaps some people think it’s permissible—even understandable—to support Hamas. But I can hardly blame a law firm or Fortune 500 company for not wanting to associate with someone who celebrates gang-rape, mutilation, kidnapping, and live incineration, any more than I can blame them for not wanting to hire someone who yells at a federal judge “We hope your daughters get raped,” as Stanford law students did.     

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We shouldn’t weaken speech protections, which have made America not only the freest country in the world, but the most tolerant. But sometimes “speech” isn’t speech. Sometimes it rises to the level of conduct that prevents others from being able to live their lives. Right now we need people to discern the difference. 

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and the forthcoming Canceling Justice: The Illiberal Takeover of Legal Education (HarperCollins). He also writes the Shapiro’s Gavel newsletter on Substack.