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Wednesday, October 25, 2023

First Amendment Projection (no, not that kind) (Updated)

GW students projected antisemitic/anti-Israel messages onto a campus building. The messages ("Palestine from the river to the sea") are protected. They were "spoken" from a public space in which they had the projector. The only  issue is that they expressed them by projecting words onto the sign of a university building. So what is the property and First Amendment law for projecting images and messages onto someone else's property? (For the moment, accept that GW intends to hold itself to First Amendment obligations).

    • Is it akin to defacing a property with paint, or chalk, or paper. Government therefore can prohibit (or stop once started) any use, including expressive, of its non-forum property. Perhaps subject to not doing so in a viewpoint-discriminatory manner. I do not believe there is any history of this practice, so GW has not designated this as a public forum.

    • Does it not involve use of the property at all? Is projecting onto a building no different than projecting the images, a la the Bat Signal, into the sky? Therefore, it is speech made off and without using government property, so government cannot prevent or stop it, within First Amendment bounds.

    • If projection involves "use" of the property, what governmental interest justifies stopping that use. Not preservation of the property, since the projection does not harm or affect the property. That leaves something like wanting to keep the building clear of images, perhaps for concerns that everyone will start projecting stuff--although it can serve that interest with a lesser policy, such as a first-come-first serve or other TPM rules. Or it leaves an interest in avoiding the risk or appearance of government association with the messages.

As with other campus groups and protests, the noise-to-signal ratio is out of whack. The point is not that the students expressed antisemitic ideas or that the ideas make Jewish students feel "unsafe." That is the world of free speech. The only point is the rules around projection--whatever they turn out to be.

Update: LeeAnne Fennell (Chicago) shares Maureen Brady's 2020 HLR article and Lee's JOTWELL review on the issue. Maureen focuses on private property, arguing for something like nuisance incorporating anti-commandeering and the dignitary interest in avoiding misatttribution. Government property raises distinct issues, although the misattribution point carries forward. I think Brady and Fennell would agree that 1) projecting onto the government building is different than projecting into the sky and 2) the use of the property, independent of damage to the building, implicates a government interest.

Update: GW issued a statement. Projecting violated university policy (whatever that means), the university is investigating, and the university will take "any appropriate steps" under university policy--plus all the usual "does not reflect our values/we're here for you" pablum. Based on the comments to the tweet, the statement did not satisfy people who want the university to expressly decry antisemitism and/or want the students expelled.

Focusing just on the last point: During the 2016 election season, Emory students chalked "Trump 2016" message on campus, apparently outside of the space where chalking is allowed. Various lefty campus groups went nuts about the "pain" and the university investigated and threatened the students with punishment. Obviously, the university could sanction students for chalking in violation of university policy; it could not (if committed to abiding by the First Amendment) impose a stricter sanction for out-of-space chalking of pro-Trump messages than of anything else. That is, if chalking is not grounds for expulsion, chalking "Trump 2016" cannot be grounds for expulsion The same goes here: If projecting images onto a campus building is not grounds for expulsion (and I doubt it is), projecting antisemitic images onto a campus building cannot be grounds for expulsion. This is Free Speech 101.

On the first point, critics of GW may have a point. Emory's President met with several dozen students and expressed understanding for students' "genuine concern and pain" and ordered revision of bias-reporting proceedings. GW's statement (which as one commentator points out did not mention Jews or antisemitism) does no such thing.

Posted by Howard Wasserman on October 25, 2023 at 11:45 AM in First Amendment, Howard Wasserman | Permalink


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