Overview
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Freedom of Speech
Public universities and colleges are required to abide by the First Amendment of the U.S. Constitution[1] which protects your right to free speech and free expression.[2] Most private universities also agree to uphold principles of free speech and expression, and some are required by state laws to uphold those rights.
This means that you can write and talk about issues supporting Palestinian freedom, if you choose to, and that your college cannot restrict what you say because they do not like your message.
Unfortunately, university administrators too often ignore their First Amendment obligations when they face pressure to punish speech critical of Israel’s policies. That’s why it’s a good idea to know your rights to free expression in different situations when you decide to organize and speak out on the issue of justice for Palestine, Palestinian human rights and Palestine/Israel. The law may be different if you are at a private or public university, on or off campus, on the internet, or in a public or private lecture or meeting. This resource addresses the most common situations that Palestine Legal encounters in advising student activists.
Important Laws
Federal and state laws protect your right to freedom of expression. Here’s a basic overview on laws that protect you:
U.S. Constitution: The First Amendment to the U.S. Constitution protects your right to free speech and expression from government interference. (The “government” includes federal, state, municipal and city governments or public officials – and your university or college if it’s public.)
Some State Constitutions and Laws: Your state might have laws that prevent your public or private university from infringing on your right to free speech and expression. California[3] explicitly recognizes such protections and courts in New Jersey,[4] Pennsylvania,[5] Washington[6] and Massachusetts have also ruled that their state constitutions protect free expression at private institutions.
Local Laws or College Policies: If your state doesn’t protect the right to free speech on a private campus, your college still might. Look at your college website, handbook, and other college materials for language promoting a tradition of free speech and exchange of ideas.
Public Colleges vs. Private Colleges
- Public College: If you are at a public college or university, you have a First Amendment right to express your opinion on campus.
- Private College: If you are at a private college or university you may also have the right to express your opinion on campus. This depends on your state and your university’s policies.
The Basics
- Your speech can be impolite.[7]
- Your speech can be “controversial.”[8]
- Your speech does not have to be “civil.”
- You cannot be forced to hold “dialogue sessions” with Israel advocacy groups.
- University officials cannot discriminate against you based on the viewpoint of your speech.
- University officials can limit speech in limited circumstances, including when it threatens immediate harm or encourages unlawful activity
The First Amendment protects your right to freedom of speech and expression at a public college or university. “Speech” and “expression” include words you speak or write, messages you hold or wear, art you create and street theatre. The First Amendment also prohibits “viewpoint discrimination” – government action (which includes action by public university officials) that burdens or suppresses speech based on viewpoint. This means that if a student or a group is punished because administrators don’t like their message, the university may be held accountable for violating students’ constitutional rights.
Frequently Asked Questions
What should I do if I believe my college or university has violated my rights?
Contact Palestine Legal!
Can I criticize the State of Israel on campus?
Yes. If you are at a public college, the First Amendment gives you the right to criticize Israel, the U.S. or any other country. If you are at a private college, look to state law (California and Massachusetts protect the right to free speech on college campuses, for example) or university policies stating that your college respects the free exchange of ideas. Colleges that prohibit students from talking about world affairs will find it difficult to claim that they are centers for learning and enlightenment.
What if other students or the administration say that criticizing Israel is anti-Semitic?
Allegations that criticism of Israel amounts to anti-Semitism, that is, “hostility toward or discrimination against Jews as a religious, ethnic, or racial group,” are all too common. This allegation aims to deflect from the policies and practices of the Israeli government by mislabeling those who advocate for justice for Palestinians as the offending parties.
Common sense makes clear the distinction between anti-Jewish bias (based on the race, ethnicity or religious identity of Jewish people as individuals or as a group) and criticism of Israeli state practices.
Does the First Amendment protect all speech? Can I talk about boycotting Israel? Can I call Israel an apartheid state?
Stating that you endorse the boycott of Israeli is protected speech. Stating that you believe that Israel is an apartheid state is also protected speech under the First Amendment. The First Amendment protects your right to express your opinion, even if your viewpoint is unpopular or controversial. You may criticize the United States, Israel, the police, or any government or governmental representative. But this right does not extend to defamation, obscenity[9], “true threats”[10] or speech that incites imminent violence or law-breaking.[11] Sometimes speech that students view as a political statement or a joke might be viewed by others as a “true threat.”
Keep in mind that what you say or post on social media can be taken out of context, and may invite the attention of pro-Israel groups, your administration, and even law enforcement. If you are worried that you may get in trouble for what you want to say or have said, call us for advice.
What if pro-Israel attendees react violently to what I or one of my invited speakers say at an event?
Your college can't hold you responsible for the way that counter-demonstrators or your own supporters react, as long as your words don't directly incite violence or law-breaking. To do so would be an unconstitutional “heckler’s veto.”[12] A related issue is whether administrators can require you to have security officers at an event, or impose security fees.
Can my college force me to “dialogue” with pro-Israel or Zionist groups?
No. Just as the First Amendment (and free speech principles) protects your right to express your viewpoint, it also protects your right not to speak – or “dialogue.”[13] SJP chapters and Palestinian students increasingly face pressure from pro-Israel groups and university administrations to engage in activities with pro-Israel groups that are fundamentally opposed to their work for justice and equality for Palestinians. Many students feel that such attempts to “normalize” relationships between Palestine activists and pro-Israel groups is a disingenuous and ineffective attempt to promote reconciliation by presenting Israeli and Palestinian narratives together as “equal and balanced,” without addressing the underlying structural racism, violence, and displacement that Israel commits against the Palestinian people.
Normalization activities can be disempowering, distracting and derailing, and often have the effect of diffusing solidarity work. The First Amendment protects your right not to participate. Keep in mind that the administration or pro-Israel groups may brand you as being hostile or anti-Semitic, so be ready to explain what normalization is about and why it’s problematic.
Can my public college force me to write a “civility” statement?
No. Just as the First Amendment prohibits the government from interfering with your right to voice your opinion, it also prohibits public universities from forcing you to say something you do not wish to say – whether it be the Pledge of Allegiance or a “civility statement” stating that your speech will be “civil.”[14] Keep in mind that though private schools may have more leeway in this area, civility statements may still be challenged.
Can my college require me to attend a “conflict mediation session?”
It depends. Universities sometimes require or suggest that students attend conflict mediation sessions after students engage in mock eviction actions, walk-outs or other forms of expression. These conflict mediation sessions sometimes involve the presence of a rabbi or imam, incorrectly suggesting that student actions supporting Palestinian rights are a religious conflict between Muslims and Jews. You have the right to refuse to attend a dialogue session that is not part of a disciplinary sanction resulting from a disciplinary process. However, you may decide to attend such a session if it is required in lieu of punishment. Contact us if you have a question.
Do I have the right to wear a T-shirt supporting BDS or Palestinians in Gaza?
Yes. Wearing a T-shirt with such a constitutionally-protected message is protected speech activity under the First Amendment.[15] A public university cannot ban viewpoints or ideas because they may be unwelcome or unpopular.
Tips
Talk to your administrators: Build relationships, let them know who you are and what your group is about. The more support you have from your college, the better. Explain that your student group supports equality for all people, and stands against Islamophobia, anti-Semitism and all forms of discrimination.
Ask if your private college supports free speech: Your university should support the free exchange of ideas on this important social and political issue – even if it isn’t required to do so under the First Amendment or state law.
Plan Ahead: Know your college’s rules and policies regarding the type of action you’re considering, and research how your university has responded to similar actions in the past. Be prepared for possible backlash and have a media strategy.
Document Everything: Save evidence (email, video, pictures), take screen shots and notes of all relevant information, such as:
- Who was involved
- What happened
- Where it happened
- When it happened
- Who you reported it to
- Witnesses, if any
Contact Palestine Legal for legal or advocacy support, and to report incidents. We may be able to provide you with additional resources and connect you with organizational support or other lawyers in your area who understand the political and legal issues, if necessary.
Footnotes
[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”).
[2] Widmar v. Vincent, 454 U.S. 263, 268-269 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”).
[3] California Education Code § 94367(a) (“No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.”).
[4] State of New Jersey v. Schmid, 84 N.J. 535, 559-560 (1980).
[5] Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981).
[6] Alderwood Associates v. Washington Envtl. Council, 96 Wash. 2d 230, 635 P.2d 108 (1981).
[7] Cohen v. California, 403 U.S. 15, 24-25 (1971) (Wearing a T-shirt bearing the words “Fuck the draft” is protected free speech activity under the First Amendment).
[8] Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free speech under our system of government is to invite dispute. It 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. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”)
[9] Miller v. California, 413 U.S. 15, 20-21, 23 (1973) (quoting Roth v. United States, 354 U.S. 476 (1957)).
[10] Virginia v. Black, 538 U.S. 343, 347-48, 359-60 (2003) (plurality).
[11] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
[12] Forsyth County v. Nationalist Movement, 505 U.S. 123, 139-140 (1992).
[13] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (Schools cannot compel pledge of allegiance.).
[14] Barnette, 319 U.S. at 624 (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”).
[15] Cohen v. California, 403 U.S. 15, 24-25 (1971) (Wearing a T-shirt bearing the words “Fuck the draft” is protected free speech activity under the First Amendment).
Disclaimer: Do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal.