The Free Speech Fallout from the Israel-Hamas War Could Be Dire

The First Amendment is imperiled at college campuses across the country.

That’s according to Eugene Volokh, a free speech expert and law professor at the University of California at Los Angeles, who is deeply concerned about the fallout over demonstrations on the Israel-Hamas war.

“I’m worried that there is pro-Palestinian speech being suppressed. I’m worried that there’s some pro-Israeli speech being suppressed,” he said in an interview with POLITICO Magazine. “I also think that there are some things that are being too much tolerated.”

College leaders have faced intense scrutiny as they’ve attempted to navigate competing pressures on campus, and critics on both sides of the issue and in both parties say they’re failing.

Lawmakers have slammed university officials over their responses, with Republicans taking aim at the presidents of Harvard, MIT and the University of Pennsylvania at a House Education Committee hearing Tuesday. The Biden administration, meanwhile, has launched more than a dozen investigations into incidents of antisemitism and Islamophobia in schools since the Oct. 7 Hamas attacks roiled campuses across the country.

Volokh, who helms the popular “Volokh Conspiracy” blog now housed at the libertarian Reason Magazine, said he thinks college officials should more often just keep their mouths shut.

“It’s not our job to opine on, or to even express horror, at horrible things,” he said.

Protests over the Israeli-Palestinian conflict on college campuses are nothing new, but the war has clearly heightened the long-simmering tension. And now college leaders are stuck playing referee over what might be considered legitimate pro-Palestinian advocacy and what’s discrimination against Jewish people.

The Education Department is expected to soon come out with its own answer in a long-delayed regulation that Jewish civil rights groups say should make clear when a university must intervene in antisemitic or Islamophobic incidents. The proposal could closely align with former President Donald Trump’s executive order, which threatened to pull federal funding from colleges that ignore antisemitism on campus.

Clarifying Title VI of the Civil Rights Act to say it protects against discrimination based on national origin could be useful, Volokh said, but restricting how people speak about Israel on campus could set a “very dangerous” precedent for universities.

He also discussed what he called “censorship envy,” and why activists on the left may soon decide they’re not as eager to curb so-called “hate speech” after all.

This transcript has been edited for length and clarity.

The First Amendment is one of your main areas of expertise as a legal scholar, and you’re a big free speech proponent. How do you feel about the climate on free speech, amid fierce debate over pro-Israel and pro-Palestinian protests on college campuses?

I’m worried that there is pro-Palestinian speech being suppressed. I’m worried that there’s some pro-Israeli speech being suppressed. I also think that there are some things that are being too much tolerated.

When there are demonstrations where people take over some school building or something like that, that’s not protected speech. I think that should be quickly stopped and punished. And that’s true whether it’s pro-Palestinian or pro-Israel.

College leaders have been lambasted for their response to the Israel-Hamas conflict. How should they respond to campus protests, rallies and demonstrations?

I think the optimal response for college leaders ought to be: We’re happy to talk about things that are happening at our university. When it comes to things that are happening in the world at large — even utterly atrocious things — it’s not our job, that’s not what we get paid for. It’s not our job to opine on, or to even express horror, at horrible things. Horrible things happen all the time in this world.

But many universities have recently spoken out on a wide range of topics: the killing of George Floyd, abortion, and about a variety of other subjects. So now, the view of some is OK, one Black man is killed by a police officer in America and you speak out, perfectly fine. You’re entitled to speak out. But 1,200 Jews, including some Americans, are murdered in a deliberate attack in Israel by Hamas, and you keep mum now?

A major debate taking place on Capitol Hill is the question of “hate speech” and “speech you hate.” How would you draw that line? How should Congress be handling this discussion differently?

As a First Amendment matter, there is no line to draw because “hate speech” is not a First Amendment term.

Now, some people have been trying to push back on that. They say certain viewpoints should be banned by the government; either people should go to jail for expressing those viewpoints or they should be fined or sued, or they should be expelled from public universities. Those people do have to try to explain when is criticism of Israel antisemitic and therefore hate speech. Or anti-Israeli and therefore presumably hate speech based on national origin. And when is it just criticism of the government of the State of Israel.

You could argue, well, we need to draw a line between this speech and other speech. Then the line becomes very difficult to draw up. One possibility is that some people on the left, who both have campaigned for somewhat more restrictions on supposed hate speech and who support the Palestinian cause and who are sharply critical of Israel, maybe they’re going to reconsider.

Maybe they’re going to say, “Wait a minute. If we allow suppression of hate speech, we see already that the pro-Israeli forces are using that as a tool to suppress anti-Israel advocacy. So, maybe we ought to agree with Justice [William] Brennan and Justice [Thurgood] Marshall and other leading liberal justices of the past who refused to come up with a hate speech exception and see that it’s actually important to protect speech. Otherwise, our own speech might be next on the chopping block.”

The presidents of Harvard, MIT and UPenn will testify before the House Education Committee about their response to the war. To what extent are university presidents able to claim First Amendment protections for allowing demonstrations on campus in support of Palestinian people that lawmakers and Jewish students have found objectionable? Is this different for private universities?

Private universities are not bound by the First Amendment because the First Amendment only applies to government action. Now, a lot of private universities have essentially said we protect the free speech of our students, even though we don’t have to.

Public institutions are directly constrained by the First Amendment. If a public university wants to punish a student because of his support for Hamas, let’s say speech saying “Hamas was right, Hamas is justified in killing Israeli civilians.” That would be unconstitutional. It can’t punish students for their viewpoints, whether those viewpoints are seen as hateful or pro-murder or otherwise.

The University of California and Berkeley Law are being sued over claims of allowing antisemitism to go unchecked on campus. Berkeley says pro-Palestinian demonstrations are examples of free speech and they’ve permitted “Zionists” to be excluded from clubs by saying that’s based on student viewpoints not religious discrimination. As a professor at UCLA, how do you think the U.C. system has handled demonstrations? And is this First Amendment argument from Berkeley valid?

I haven’t looked closely at that particular complaint, but I can say generally, the University of California has to allow antisemitism on campus in the form of antisemitic advocacy.

Even if you completely persuade some judge, “Yes, this criticism of Israel is antisemitic.” The judge’s reaction has to be, “OK, University of California is bound by the First Amendment. It can’t suppress criticism just because it’s antisemitic.”

On the other hand, a university does have a duty to protect its students from violence. For example, if the university has allowed antisemitic violence or antisemitic vandalism while coming down hard on other kinds, then in that case, that might be discrimination based on their being Jewish — that they’re not being protected where other students are being protected.

The Education Department has launched several civil rights investigations into colleges and K-12 schools over alleged antisemitism or Islamophobia. What’s your sense on whether that’s a good idea or if they risk impinging on free speech?

If all this reflects is they have a complaint, well, presumably they can’t just ignore the complaints. If the opening of the investigation is simply, “OK, somebody made an accusation, then we need to at least have a look at it and see if this is a legit accusation that is legally adequate.” And on top of that, maybe investigate the facts to see if the facts support it.

The department is also expected this month to unveil a regulation that would specifically make discrimination based on national origin or shared ancestry illegal. A previous executive order by President Donald Trump included the International Holocaust Remembrance Alliance definition of antisemitism, which included denying Israel’s right to exist. Are you concerned that could be a First Amendment issue for campuses?

There are two very separate things potentially in play here. One has to do with this question of whether discrimination against Jews is prohibited by Title VI.

Title VI only bans discrimination in federally funded programs based on race, color or national origin. It doesn’t cover religion. Why? Because there are universities that routinely discriminate based on religion with some religious universities. Because of that, Title VI doesn’t ban discrimination based on religion.

So some questions have arisen, does it even ban discrimination against Jews? And generally the federal government has said, well, yes, it does, because discrimination against Jews, likewise discrimination against certain Muslim groups, is really discrimination against a kind of national group, a kind of ethnic group. There’s been talk of making that clear.

There’s a separate question, though, of whether the government should adopt this International Holocaust Remembrance Alliance definition of antisemitism. That would pose very, very serious First Amendment problems.

To the extent that there are attempts to try to restrict antisemitic speech or classifications imposed by universities by working in anti-Israel sentiment into that category, that would make it essentially very dangerous for universities to tolerate certain kinds of criticism of Israel — criticism that is constitutionally protected — and that the federal government, I think, has no business trying to suppress.

In fact, there is a Department of Education decision in a case involving Rutgers, under the Trump administration, that seemed to adopt the IHRA definition. And I sharply criticized it. I think that that would be a very serious suppression of speech. Even though it would be a way of trying to pressure universities, including private universities, it would be the government imposing such pressure and that should be restrained by the First Amendment.

Stepping back a bit, how worried are you that free speech rights are going to be permanently curtailed because of the fallout from the Israel-Hamas war?

I am worried. I think to the extent that people do conclude, “Yes, this speech is beyond the pale, we have to suppress this kind of speech,” and that it’s legitimate for the government to suppress this kind of speech or for private universities that have before endorsed broad free speech rights… I think it would be very dangerous.

There’s a phenomenon I call “censorship envy,” which I think we’re seeing a lot of here. It’s just a reflection of what I think is human nature. If somebody says things that I find really offensive, but everybody else has to deal with things that they find offensive, I can say, OK, fine, I’m just going to try to ignore this person or argue against them or just have to deal with it, because everybody has to deal with it.

But if I see that other groups have gotten speech that they dislike suppressed, then I think what kind of chump am I if I tolerate speech I dislike. I should get at least the kind of protection against offensive speech that other groups are getting. And I think we’re seeing that in a lot of arguments for suppressing the anti-Israel speech.

I’ve often made such arguments myself and said look, we should be as free to criticize Israel as any other country. And people say, well, in principle, we may agree with you Volokh, but we know what will happen if somebody criticizes Blacks or criticizes gays and lesbians or criticizes trans people or criticizes women.

Given that that kind of speech is effectively being suppressed in various ways, well, then we need to suppress speech that praises the murder of Jews as well. But once that happens there’s going to be all these calls for more exceptions. That does worry me.