The Volokh Conspiracy
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ACLU on Campus Free Speech
From ACLU's Mar. 4 Open Letter to U.S. College and University Presidents:
This letter is prompted by two Executive Orders—Executive Order 14161, titled "Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats," signed on January 20, 2025, and Executive Order 14188, titled "Additional Measures to Combat Anti-Semitism," signed on January 29, 20252—and related communications from the White House.
Executive Order 14161 states that it is the United States' policy to "protect its citizens" from noncitizens who "espouse hateful ideology," and to ensure that noncitizens "do not bear hostile attitudes toward [America's] citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security." The Order directs the Secretary of State to "[r]ecommend any actions necessary to protect the American people from" noncitizens who, among other things, "preach or call for … the overthrow or replacement of the culture on which our constitutional Republic stands."
Executive Order 14188 requests from the Attorney General "an inventory and analysis of all court cases … involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023 campus anti-Semitism" and directs the Secretaries of State, Education, and Homeland Security to recommend ways to "familiariz[e] institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities" by noncitizen students and staff and ensure that such reports lead "to investigations and, if warranted, actions to remove such aliens." In a fact sheet explaining Executive Order 14188, the White House described the Order as "forceful and unprecedented," made clear its purpose of targeting "leftist, anti-American colleges and universities," and described it as a "promise" to "quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before." …
In combination, these orders, the accompanying fact sheet, and other communications from the Trump Administration are intended to enlist university officials in censoring and punishing non-citizen scholars and students for their speech and scholarship. As you well know, this would intrude on academic freedom and equal access to education….
Institutions of higher learning play a key role in our democratic society. As spaces committed to academic freedom and open discourse—and which are often home to a diverse group of people with a range of different backgrounds, bringing together scholars and students from throughout the United States and all over the world—college and university campuses have been central to political expression and the development of ideas throughout the history of the United States. American campuses also enable non-citizen students and faculty to more freely express themselves—including by expressing views that might be subject to heightened repression and censorship in their countries of origin—through political demonstrations, academic debate, or research and writing.
Ideologically-motivated efforts to police speech on campus—including speech critical of America's "citizens, culture, government, institutions, or founding principles," or of the acts of the U.S. government or foreign governments—undermine the foundation on which academic communities are built, regardless of the nationality or immigration status of speakers who are censored. Though the precise implementation of the Executive Orders remains to be seen, Executive Order 14161 articulates the Administration's desire to target individuals who "advocate for, aid, or support designated foreign terrorists and other threats to our national security," those who hold "hateful" views, and those who "bear hostile attitudes toward [America's] citizens, culture, government, institutions, or founding principles." In the fact sheet on Executive Order 14188, the White House makes clear that it believes many institutions of higher education are "leftist" and "anti-American," and are home to "Hamas sympathizers" and "radical[s]."
The message is clear, regardless of whether the force of law will ultimately follow: immigrant students, faculty, and staff on college and university campuses should think twice before they criticize the United States or this Administration, express support for Palestinians, or condemn Israeli government policies—or indeed anything else President Trump and other federal officials might possibly find objectionable—and colleges and universities that allow such speech, debate, and protest should think twice, too.
These executive orders are at odds with the foundations of academic freedom. For public universities and colleges, the orders could require campus officials to violate the First Amendment, which obligates government entities to respect free speech rights, including those of its students, faculty, and staff who are not U.S. citizens. Schools are also obligated under federal law to protect students from discrimination, harassment, threats, and violence. But protected political speech and association alone—no matter how offensive to members of the campus community—cannot be the basis for discipline, nor should it lead to immigration consequences. Private universities, though not bound directly by the First Amendment, are also guided by similar commitments to academic freedom and free inquiry. In addition, the First Amendment safeguards against government efforts to pressure private universities to stifle their community members' disfavored speech. Cf. NRA v. Vullo (2024) (holding that the government may not pressure third parties into censoring speech that it could not censor directly).
Viewpoint neutrality is essential in this endeavor. Particular viewpoints—whether reprehensible or popular in the eyes of the majority of the community, or whether singled out in the Executive Orders and related communications—must not be targeted for censorship, discipline, or disproportionate punishment. Harassment directed at individuals because of their race, ethnicity, or religion is, of course, impermissible. But protected political speech cannot be the basis for punishment. As suggested by its executive orders, the Trump Administration would like to censor and punish, among other things, expressions of "from the river to the sea," or advocacy to "replace[] the culture on which our Constitutional Republic stands," or a course on the history of white supremacy in America. Such censorship, even of speech that is offensive to many listeners, is anathema to the First Amendment and principles of academic freedom.
To the contrary, the ability to criticize governments, their policies, and even their foundational philosophies is a critical component of our democracy. Political speech is "at the core of what the First Amendment is designed to protect." It enables the "unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Our country has a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open[.]"And that commitment extends to college and university campuses, where the First Amendment safeguards free speech and free association. In Healy v. James (1972), for example, the Supreme Court affirmed that the First Amendment protects the right of student groups to associate and speak out on matters of public concern, free from censorship by public university officials, even where the student groups may be aligned with political viewpoints considered radical and unpopular.
Outside the classroom, including on social media, students and professors must be free to peaceably express even the most controversial political opinions without fear of discipline or censure. Inside the classroom, speech can be and always has been subject to more restrictive rules to ensure civil dialogue and a robust learning environment. But such rules have no place in a public forum like a campus green—and in any event, it is not the proper role of the White House to set those rules. Preserving physical safety on campuses is paramount; but "safety" from ideas or views that one finds offensive is anathema to the very enterprise of the university….
[U]niversities can, and indeed must, protect students from discriminatory harassment, including on the basis of "shared ancestry or ethnic characteristics," or "citizenship or residency in a country with a dominant religion or distinct religious identity." While offensive and even racist or xenophobic speech is constitutionally protected, shouting an epithet at a particular student or pinning an offensive sign to their dorm room door can constitute impermissible harassment. Antisemitic, anti-Palestinian, or anti-immigrant speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Physically intimidating students by blocking their movements or pursuing them aggressively is unprotected conduct, not protected speech. It should go without saying that violence is never an acceptable protest tactic.
Speech that is not targeted at an individual or individuals because of their ethnicity or national origin but merely expresses impassioned views about Israel, Palestine, immigration policy, or any other subject the White House may find objectionable is not discrimination and should be protected. The only exception for such untargeted speech is where it is so severe or pervasive that it denies students equal access to an education — an extremely demanding standard that is rarely, if ever, met by pure speech. Federal government officials cannot coerce university officials into taking actions inconsistent with this settled First Amendment law….
I think this analysis is generally quite sound as a matter of free speech principle. As I noted last month, it's not clear whether the First Amendment would prevent the federal government from deporting noncitizens for their speech "endors[ing] or espous[ing] terrorist activity"; but, as I also noted then, I think that such deportation is bad policy, because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans. Indeed, even pro-Hamas speech on American university campuses has, I think, taught many Americans a valuable lesson about various speakers, groups, and ideologies. That would be true of speech by foreign students or by lawful permanent residents as well as by American citizens.
Note also that NRA v. Vullo, the 2024 Supreme Court precedent that the ACLU's letter cites, was argued by David Cole of the ACLU (representing the NRA); the petition was filed by the Brewer Law Firm and by me. I think the visible ACLU-NRA / left-right alliance helped the NRA prevail, but also, as this case illustrates, helped ACLU in its broader agenda. The underlying principle—that the First Amendment limits the government's power to deter speech by threatening intermediaries (banks or insurance companies in NRA v. Vullo, private colleges)—protects all speech (at least by citizens), whether pro-gun-rights speech, anti-Israel speech, or even pro-terrorist speech.
The letter also argues that universities shouldn't generally assist federal officials in immigration law enforcement, makes various arguments about the Family Educational Rights and Privacy Act, and makes various Fourteenth Amendment and Title VI arguments as well; I'm more uncertain on those matters. I'd also quibble a bit with the precise articulation of what may be punishable harassment. But the ACLU's general analysis about free speech strikes me as quite right.
