The Volokh Conspiracy
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Call to "Update Free Speech Policies" to Address Supposed Hate Speech at Public University
I'm against it, whomever it's coming from.
I've seen plenty before, but this one is from Texas Gov. Greg Abbott, and the particular target is "antisemitic speech." An excerpt from Wednesday's Executive Order:
WHEREAS, Section 51.9315(f) of the Texas Education Code requires all higher
education institutions to adopt policies detailing students' responsibilities regarding free expression on campus; andWHEREAS, Section 51.9315(c)(2) of the Texas Education Code provides that students
should not participate in, and higher education institutions should not allow, expression that is unlawful or disrupts the operations of the institution; andWHEREAS, antisemitism and the harassment of Jewish students have no place on Texas university campuses and will not be tolerated by my administration;
NOW, THEREFORE, I … hereby direct all Texas higher education institutions to do the following:
1. Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution.
2. Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.
3. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech.
Texas Government Code Section 448.001 incorporates "the International Holocaust Remembrance Alliance's 'Working Definition of Antisemitism,'" which includes (among other things),
- Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
- Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
- Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
- Drawing comparisons of contemporary Israeli policy to that of the Nazis.
As readers might gather, I oppose those on the Right trying to ban supposed "hate speech" at universities, just as I oppose those on the Left trying to do the same. Of course students have to be free to argue that Jews don't have a right to "self-determination" in the sense of having their own country, just as they have to be free to argue that Palestinians don't have such a right, or Basques, Kurds, Catalonians, North Cypriots, South Ossetians, etc. don't have such a right. I support Israel's right to exist, but that is a subject that has to be up for free debate just like any other subject.
Of course students' free speech rights can't be limited by judgments about when the students are supposedly applying "double standards." What would we think, for instance, of criticisms of Communist China being punishable if some university administrator concludes that the critic isn't holding some other country to the same standards? Of course they have to be free to analogize the Israeli government or Hamas or the Chinese government or the Russian government or for that matter Trump or Biden to the Nazis, whatever we think of the soundness of such analogies.
Students also have the right to express anti-Semitic sentiments (or anti-Palestinian or anti-trans or anti-gay or anti-black or anti-white or anti-male or anti-female or anti-Catholic or anti-Protestant or anti-Muslim sentiments), just as they can any other sentiments. There is no "hate speech" exception to the First Amendment, and no anti-Semitic speech exception in particular.
The rules are also the same at public universities. Papish v. Board of Curators (1973) expressly rejected the notion that the university's "legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination" extends to "disapproved content … rather than the time, place, or manner of its distribution." And Papish expressly held that "the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech," which is to say a different standard than the First Amendment applies to the government as regulator. Or, to quote Healy v. James (1972),
[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."
As I've said before, universities certainly have the power to punish trespassing, blocking entrances, excessive noise, vandalism, and a wide range of other behavior, so long as they do it apart from content. They likewise have the power to punish true threats of illegal conduct, solicitation of illegal conduct, and the like, so long as they do it evenhandedly. They should generally use this power, and at times they haven't used it enough.
But they can't target "antisemitic speech" based on its antisemitic sentiments, and punish it with "expulsion" or for that matter with lesser punishment. And they certainly can't define criticism of Israel, however misguided or even ill-motivated, as punishable "antisemitic speech."
