Freedom of speech protects speech that is both loved and hated. The U.S. Supreme Court instructed in Terminiello v. Chicago (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.”
But like all other rights, freedom of speech has limits. Evenhandedly applied reasonable time, place, and manner limits are acceptable; for example, prohibiting picketing outside homes in a residential area at 3 a.m. or blocking pedestrian or vehicle traffic.
Viewpoint-based restrictions, however, are suspect, such as permitting protesting Hamas terrorism but forbidding protests against Israeli actions in Gaza. The Supreme Court set forth the standard between protected and unprotected speech in Brandenburg v. Ohio (1969): “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Take Columbia University. Tents and an encampment have trespassed on university property to protest an alleged Israeli genocide of Palestinian civilians in Gaza, a charge that is pending before the International Court of Justice. But why have the protesters been silent over the Chinese Communist Party genocide of Uygurs or the Burmese regime’s genocide of the Rohingya? Does that skewed response betray anti-Semitism or other ulterior motives?
The protests call for a “third intifada” or “uprising,” a term that terrorist organizations in the Middle East use as synonymous with violent terrorism directed at Israel. The first intifada ran from 1987 to 1990, and the second from 2000 to 2005. Approximately 1,000 Israelis were killed in Palestinian terrorist attacks during the second. But is a third intifada imminently likely to unfold with Hamas decapitated in Gaza?
What about the “From the river to the sea, Palestine will be free” chants? Its etymology is curious. In the context of 2024 and fierce opposition to Israeli actions in Gaza, the chant might reasonably be interpreted as seeking the eradication of Israel—an objective not likely to succeed.
The Hezbollah terror flag was reportedly displayed in Princeton. A similar incident transpired in Manhattan amid the burning of American flags, which the Supreme Court held is protected by the First Amendment in Texas v. Johnson (1989) and United States v. Eichman (1990). Hezbollah’s leader Hassan Nasrallah has claimed his organization has 100,000 trained fighters. Hezbollah was responsible for the bombing of Marine barracks in Beirut in 1983, killing 241 U.S. military personnel.
There were also the chants of “Death to America” sung by individuals who openly advocate for membership in Hamas and maintain that “there is nothing wrong with being a fighter” in that terror organization. That confidence is wildly misplaced. It is a federal crime to provide material assistance to a foreign terrorist organization, including joining as a member.
At Yale, a Jewish student-journalist was allegedly stabbed in the eye by a Palestinian protester with a Palestinian flag, the crime of assault. Furthermore, incidents have been reported nationwide in which Jewish students are intentionally barred from accessing campus property, which is also a crime of false imprisonment or blocking a thoroughfare. The incidents would constitute hate crimes with proof that the victims were selected because they were Jewish.
The U.S. Supreme Court has held that Title VI creates an implied private right of action enabling victims of racial or religious discrimination on campus to sue the violators for damages or injunctive relief.
Hundreds of protesters have been arrested throughout American colleges and universities. The vast majority will receive a slap on the wrist and return to protest immediately. Private Title VI suits are necessary to deter and to discover the ulterior motives and hidden funders of the anti-Israeli protests.
We need to strictly punish illegalities while protecting speech we hate short of inciting imminent lawless violence imminently likely to succeed. Freedom of expression is often cathartic and prevents violence. Students should be resilient to name calling, remembering the rhyme, “Sticks and stones may break my bones, but words will never hurt me.”
