Advocacy in Support of Hamas vs. Illegal Material Support of Hamas

Whether Florida may order universities to derecognize Students for Justice in Palestine chapters would likely turn on whether there's evidence on sufficient coordination between them and the national SJP, and the national SJP and Hamas.

[UPDATE 11/1/2023, 4:12 pm: Here's an open letter on this subject sent today by the ACLU.]

FIRE wrote this letter Wednesday to various Florida public universities:

FIRE is deeply concerned by reports [link] that Florida's public universities … have been ordered by State University System of Florida Chancellor Ray Rodrigues, at the behest of Florida Governor Ron DeSantis, to derecognize campus chapters of Students for Justice in Palestine due to their affiliation with National Students for Justice in Palestine, which distributed a guide to protests to its student chapters. {The guide [link] called for "a national day of resistance from the student movement for Palestine liberation on college campuses" on October 12 and provided an RSVP link for a meeting on "'how to organize a protest,' including roles, security, media training, and more," as well providing additional ways to engage in the movement should protest not be possible, including teach-ins and writing local statement of solidarity. It also includes information about the organization's messaging and framing, hashtags for social media use, and graphic templates..}

By insupportably alleging that communications about campus protests from the national organization to its campus chapters constitutes material support for Hamas' terrorist activity overseas, this order unlawfully threatens students' clear expressive and associational rights under the First Amendment. To avoid violating clearly established law, [Florida universities] must not comply with the order.

In a letter to all State University System of Florida presidents on Monday [link], Rodrigues said that "based on National SJP's support of terrorism, in consultation with Governor DeSantis, the student [SJP] chapters must be deactivated. These … student chapters may form another organization that complies with Florida state statutes and university policies."

As you must know, the First Amendment bars public universities from denying student groups recognition or funding due to the "ideology or the opinion or perspective of the speaker[.]" Likewise, the First Amendment provides "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends"—a fundamental right "crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas."

Denial of group recognition based on viewpoint, speech, or fear of disruption violates the First Amendment—particularly with regard to campus chapter groups' ties to a national organization. This is well-settled law. More than fifty years ago, in Healy v. James, the Supreme Court held that the president of a public college violated the First Amendment when he refused to grant recognition to a chapter of Students for a Democratic Society (SDS). Following a "climate of unrest" on college campuses, replete with "widespread civil disobedience … accompanied by the seizure of buildings, vandalism, and arson," causing some "colleges [to] shut down altogether," students sought to form a new chapter of SDS at the college. The college president refused to grant the group recognition, citing its philosophy and ties to the national SDS organization, which had "published aims … which include disruption and violence." The Court held that "denial of official recognition, without justification, to college organizations burdens or abridges" their First Amendment rights.

While the State of Florida may object to the views of Students for Justice in Palestine's national organization, its communications with campus chapters cannot serve as a basis to override those chapters' First Amendment rights. Derecognizing those groups would thus represent unconstitutional viewpoint discrimination, which is "censorship in its purest form."

The assertions in Chancellor Rodrigues' letter do not provide a sufficient basis to depart from these clearly established First Amendment rights. Governments may prohibit non-expressive conduct intended to provide "material support" to terrorist organizations, and the Florida statute cited by Chancellor Rodrigues is limited to providing "property" or "service[s] … to a designated foreign terrorist organization[.]" That remains true even if the net effect of the advocacy is that it sways public opinion. Similarly, the guide's rhetoric that students are "PART of this movement" is rhetorical hyperbole, not an announcement that the guide is issued at the direction, coordination, or control of a terrorist organization. Advocacy by a national organization does not subject individual students or their organizations to erosion of their First Amendment rights, let alone criminal liability….

Here's my tentative thinking:

Florida law, like federal law, makes it a crime to provide "material support or resources," including a "service," to a "designated foreign terrorist organization" (which includes Hamas). In Holder v. Humanitarian Law Project (2010), the Court upheld that statute against First Amendment challenge, and held that the forbidden "service[s]" include "advocacy performed in coordination with, or at the direction of, a foreign terrorist organization" (emphasis added).

At the same time, Florida law makes clear that this excludes advocacy that's entirely independent of Hamas:

An individual who acts entirely independently of the designated foreign terrorist organization or the person engaged in, or intending to engage in, an act of terrorism to advance the organization's or person's goals or objectives is not working under the direction and control of the designated foreign terrorist organization or person engaged in, or intending to engage in, an act of terrorism.

Holder v. Humanitarian Law Project repeatedly stresses that the federal law likewise excludes independent advocacy, and suggests that this exclusion is mandated by the First Amendment (e.g., "we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations"; "Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups"). And indeed a student group at a public university can't be stripped of recognition based on its viewpoint (as the Court has recognized since Healy v. James (1972)) that is expressed independently of a foreign terrorist group. That is so even if its viewpoint supports terrorism generally, or Hamas in particular.

In this respect, the Court and legislatures have drawn a line similar to that upheld in Buckley v. Valeo (1976) as to campaign expenditures: There's a broad First Amendment right to speak independently of a group or candidate, but speech coordinated with a group or candidate is less protected (entirely criminally punishable as to speech coordinated with foreign terrorist organizations, and punishable if it involves more than a certain amount as to speech coordinated with candidates).

The question then is whether the Florida university SJP chapters are acting "in coordination with, or at the direction of" Hamas, perhaps indirectly through coordinating with national SJP which is turn coordinating with Hamas. This is a factual question. The Florida State chancellor's letter argues:

In response, and leading up to a "Day of Resistance," the National Students for Justice in Palestine (National SJP) released a "toolkit" which refers to Operation Al-Aqsa Flood as "the resistance" and unequivocally states: "Palestinian students in exile are PART of this movement, not in solidarity with this movement."

It is a felony under Florida law to "knowingly provide material support … to a designated foreign terrorist organization…" § 775.33(3), Fla. Stat. (2019). Here, National SJP has affirmatively identified it is part of the Operation Al-Aqsa Flood—a terrorist led attack.

And the national SJP letter does indeed, say, in part:

That could certainly be interpreted as saying that national SJP is indeed itself involved with the "large-scale battle" and with the "All Palestinian factions in Gaza [that] appear to be participating under unified command"—not just acting independently ("in solidarity with this movement") but acting with coordination (as "PART of this movement"). At the same time, it's also possible that "movement" refers to something broader (not Hamas's actions as such but the broader movement of support for Palestinians) or that, as FIRE says, "the guide's rhetoric that students are 'PART of this movement' is rhetorical hyperbole, not an announcement that the guide is issued at the direction, coordination, or control of a terrorist organization."

So that's the question as to national SJP's coordination, or not, with Hamas. What about the Florida university SJP chapters? Healy v. James made clear that the rights of the chapters also turn on a factual inquiry into whether they are working closely enough with the national organization (which, in that case, had been seen by the university as being involved with violence). The Court held largely for the student chapter because (emphasis added),

Students for a Democratic Society, as conceded by the College and the lower courts, is loosely organized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action. Not only did petitioners proclaim their complete independence from this organization, but they also indicated that they shared only some of the beliefs its leaders have expressed. On this record it is clear that the relationship was not an adequate ground for the denial of recognition.

So if national SJP is indeed coordinating with Hamas (and thus providing support that's illegal and unprotected by the First Amendment), then the factual question would be whether the local chapters are "complete[ly] indepeden[t]" of the national organization, or whether they are likewise sufficiently coordinating with the national SJP.

It may well be that the student SJP chapters are indeed sufficiently independent of Hamas that their speech remains protected by the First Amendment. On the other hand, it's possible the Florida authorities have some factual information that suggests that there is sufficient coordination (perhaps via the national SJP) so that the Florida material support to terrorism law does apply (and so might the federal law). I'm glad that FIRE is prodding Florida universities to respond, and perhaps we'll learn more that shows that the universities are just assuming such coordination rather than having real evidence. But the First Amendment question will ultimately turn, I think, on this factual question.