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Thursday, February 29, 2024

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Posted by Howard Wasserman on February 29, 2024 at 10:29 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


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