The Volokh Conspiracy
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"[T]his Is a Matter of Law, Not of Wounded Feelings": Univ. of Maryland May Not Ban All Oct. 7 Demonstrations …
as a means of stopping an anti-Israel "vigil" organized by the UMD chapter of Students for Justice in Palestine.
Yesterday's opinion by Judge Peter Messitte (D. Md.) in Univ. of Md. Students for Justice in Palestine v. Bd. of Regents held (generally quite correctly, I think) that the University's revoking the SJP's reservation of space for a demonstration violated the First Amendment, because it was an attempt to suppress SJP's viewpoint. An excerpt of the facts:
SJP [at first was given a reservation, in August, for an event that it] described … as an interfaith vigil to be held on the University's College Park campus on October 7, intended to mourn lives lost in Israel's purported "genocide" in Gaza. In revoking the approval, the University also banned all student-organized events on the College Park campus on that day, as well as such events throughout the University system statewide….
For years, UMCP students as well as outsiders have used UMCP's McKeldin Mall as a forum for free expression, one of only four venues that UMCP allows for students to host "Scheduled Expressive Activity." The Mall is a rectangular field, consisting of some nine acres, centrally located on the College Park campus…..
SJP indicates that it primarily planned to use their reservation of McKeldin Mall to hold a vigil commemorating the thousands of lives lost since what it characterizes as the initiation of Israel's current attack on Gaza. Over the course of the day, the group stated that it would also host several other activities, including teach-ins about Palestinian history, culture, and solidarity between Palestinians and other marginalized groups; tables highlighting Palestinian art and traditional crafts; a visual display of kites, a motif in Palestinian poetry; as well as a vigil and inter-faith prayers. The group indicated that it had invited several SJP members who have personally lost family members in Gaza to speak. {SJP expressly indicated that it expected 25 to 50 student attendees and expressly agreed to comply with all student-organization event guidelines and policies.} …
SJP says it chose October 7 specifically because October 7 marks the beginning of what it calls Israel's most recent "genocidal campaign" which, SJP claims, has resulted in the death of over 40,000 Palestinians in Gaza. Another recognized student organization, Jewish Voice for Peace at the University of Maryland …, has agreed to co-sponsor SJP's event….
In response to public opposition, the University of Maryland canceled the event and indeed ban all student-sponsored events on Oct. 7; here's how UMD College Park's president publicly explained the cancellation:
Applications for events led by several student organizations have been submitted for October 7, and questions have been raised about the events of the day. Numerous calls have been made to cancel and restrict the events that take place that day, and I fully understand that this day opens emotional wounds and evokes deeply rooted pain. The language has been charged and the rhetoric intense.
Given the overwhelming outreach, from multiple perspectives, I requested a routine and targeted safety assessment for this day to understand the risks and safety measures associated with planned events. UMPD has assured me that there is no immediate or active threat to prompt this assessment, but the assessment is a prudent and preventive measure that will assist us to keep our safety at the forefront.
I have also consulted with the University System of Maryland about the importance of our university and all of our USM schools prioritizing safety and reflection on this one-year anniversary. Jointly, out of an abundance of caution, we concluded to host only university-sponsored events that promote reflection on this day. All other expressive events will be held prior to October 7, and then resume on October 8 in accordance with time, place and manner considerations of the First Amendment.
The court noted that the University System of Maryland has adopted the "Chicago Principles" protecting student speech, and that (even apart from that decision) has opened up the relevant space on campus as a "designated public forum," in which content discrimination is generally forbidden. (Under some recent Supreme Court cases, the space might properly be seen as a limited public forum, in which some content discrimination is allowed, but viewpoint discrimination would be forbidden in any event.) And the court held that the University's action violated the First Amendment. Here's what strikes me as the core of the analysis:
It is clear to the Court that UMCP's decision to revoke its permission to SJP to hold its event on October 7 was neither viewpoint-neutral, nor content-neutral, nor narrowly tailored to serve a significant government interest. The decision clearly came in response to possible speech that several groups or individuals claimed would be highly objectionable. It was further motivated by a concern—not unreasonable—that violence might ensue. Those potentialities, however, in no way legally justified the revocation. See Forsyth County v. Nationalist Movement (1992)…. [T]he Government has the "responsibility to permit unpopular or controversial speech in the midst of a hostile crowd reaction" …. [T]here is no "hate speech" exception to the First Amendment …. UMCP's decision to revoke appears to be nothing less than an effort to suppress speech which would be offensive to some, indeed many. This is true even if Defendants—despite their claiming early on that "no immediate or active threat" prompted their security assessment—in fact really did anticipate on-campus turbulence….
And here's more of the court's justification (these are just excerpts of a long opinion, which you can read in full):
SJP has picked a particularly controversial date to hold an event to commemorate Gaza War dead, to decry what it terms Israeli "genocide," and to promote multiple aspects of Palestinian life and culture. Groups opposing the event have taken deep offense over an event on October 7, a day when it has been widely reported that Hamas fighters invaded Jewish settlements near Gaza, killing some 1,200 occupants, torturing others, and taking some 250 hostages (said by some to be the worst day Jews have suffered since the Holocaust).
Individuals and groups opposing SJP's proposed October 7 event take further offense by reason of the event's likely references to the Hamas fighters as patriots, martyrs, or freedom fighters, and by at least one slogan arguably interpreted to call for the extinction of Israel ("From the river to the sea"). Numerous university students, parents, alumni, donors, and members of the public have expressed passionate opposition to the event.
But like them or not, these very terms appear in the media virtually daily. They are expressive of ideas, however vile they may seem to some. There is no reason why they should not be given protection as speech when they are used in the forum of a public university.
Moreover, there is no suggestion, in SJP's reservation form at least, that any space other than the commonly used McKeldin Mall will be occupied on October 7 or that Jewish students will be threatened or harassed or otherwise impeded from attending classes, or that any buildings will be occupied, an encampment established, or property destruction contemplated. SJP has held more than 70 events on campus since October 7, 2023, including meetings, protests, sit-ins, and demonstrations, all without significant disruption or conflict.
Indeed, as testified to at the September 30 hearing, the parties agree that SJP and UMCP have a respectful, even collaborative, relationship. For example, in May 2024, opposing groups held an event, Israel Fest, and counter-event (termed a boycott of Israel Fest) on opposite sides of UMCP's McKeldin Mall. Chief Mitchell testified that police set up fencing around each group, increased security personnel, checked bags, among other proactive security measures. Despite the controversial nature of the event, it was, Chief Mitchell testified, "very peaceful." In all, SJP appears to want to hold another peaceable, if highly controversial, event.
But this is a matter of law, not of wounded feelings. Free speech as guaranteed by the First Amendment may be the most important law this country has. In many ways, all other basic freedoms—freedom of religion, of the press, of the right to assemble, and to petition the government—depend upon it. Accordingly, subject to certain conditions that the Court will impose, the Court will order UMCP to permit the October 7 event to go forward….
Several Supreme Court precedents related to free speech on campus are relevant. See Brandenburg v. Ohio (1969) (speech can only be prohibited if it is directed to incite or produce imminent lawless action, and is "likely to incite or produce such action"); Hess v. Indiana (1973) (anti-war protesters at university yelled, "We'll take the fucking street later"; conviction overturned because speech not directed at particular person or persons and unlikely to "produce[] imminent disorder"); Healy v. James (1972) (state college could not deny recognition of anti-war group based on group's association with national organization and fear of disruption on campus); Snyder v. Phelps (2011) (family could not sue for emotional distress where individuals on public property picketed soldier's funeral because "speech was at a public place on a matter of public concern … [and] entitled to 'special protection' under the First Amendment"); Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) ("There is no 'categorical harassment' exception to the First Amendment's free speech clause.")….
The Court recognizes that the University has compelling interests in maintaining campus safety and carrying out its educational mission; however, the decision to deny University student organizations permission to sponsor expressive events on October 7 was not narrowly tailored to address those concerns. The Constitution protects even what many would deem despicable speech. See Snyder v. Phelps [upholding Westboro Baptist Church's right to picket near a military funeral, with signs saying, for instance, {"God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and "God Hates You"}]. "'[T]he point of all speech protection … is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.'" Even if outrageous words cause pain, "we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Testimony at the hearing established that UMCP indeed did have reasonable alternatives to an entire ban on expressive speech on October 7. UMCP could, for example, arrange to employ extra security personnel, rely on the assistance of local and state police, install temporary metal detectors, erect fencing for crowd control, and check student identification….
[E]ven if pro-Israel groups see October 7 as somehow sacrosanct, it is at least fair argument for pro-Palestine groups to see the date as sacrosanct as well, symbolic of what they believe is Palestine's longstanding fight for the liberation of Gaza. The facts remain—SJP chose the October 7 date, complied with the reservation process, obtained the University's preliminary approval for the date, and then had the approval abruptly taken away. No other date, as SJP sees it, can make the point of their mission quite as forcefully as October 7; to SJP, it is unique….
Allowing that SJP may engage in speech that is protected, controversial though it may be, and despite SJP's claim that only 25 to 50 students will attend, it remains entirely plausible that the University may need to beef up its security personnel (and perhaps seek the assistance of regular law enforcement) in order to maintain order during the protests, as well as to arrange for appropriate personnel to monitor any substantial inflow of non-student protestors and in general to keep the crowd under control. {At the hearing, SJP did not provide a convincing argument that the event would be or, practically speaking, could be limited to 25 to 50 students. It bears noting that USM policy specifically allows student-event holders to invite outside participants.} It simply cannot be said with assurance that personal threats, violence, and property damage as a result of campus protests involving Gaza, given recent experience around the country, will not occur. But, as stated before, there are less restrictive alternatives to meet these potential challenges short of suppressing expressive conduct under the First Amendment….
Summing up, while speech and slogans by SJP will be permitted on October 7, any negative conduct not protected by the First Amendment will not be—including any incitement to imminent violence, physical or verbal threats, impeding access of any students to class or buildings, property damage of any sort, the occupation of buildings, encampments, and, in general, defiance of reasonable crowd control measures employed by security personnel. Violators may be subject to arrest and/or ouster from the campus. The University's policy requirements with respect to campus events as they presently stand will apply in full.
{The same liability for negative conduct not protected by the First Amendment would apply to any counter-protestors who might attend the October 7 event. Moreover, free speech does not mean hecklers have the right to shut down campus debate; they do not have a so-called "heckler's veto."}
The court enjoined the ban on Oct. 7 events only as to the University of Maryland College Park campus, presumably because it was the only venue that the court viewed the plaintiffs as having properly complained about.
SJP is represent by Gadeir F. Abbas & Lena F. Masri (CAIR), Radhika Sainath (Palestine Legal), and Victoria Porell. Note that the court heavily relies on the work of our recent guest-blogger Prof. Cass Sunstein.
