Freedom of Expression Does Not Include the Right to Trespass

On Sunday, I wrote, with regard to my new article on freedom of speech and college antisemitism:

Coauthor David L. Bernstein and I spend a fair amount of space recounting examples of antisemitic campus activity that did not involve protected speech, such as vandalism, classroom and library disruptions, threats, one-on-one verbal harassment, assault, and more. Some readers of the draft paper questioned why a paper on free speech and antisemitism talking about things that don't constitute free speech.

A major reason for doing so is that David L. and I saw that many commentators were portraying the complaints about antisemitism on campus and the antidiscrimination obligations of universities under Title VI as if these complaints solely or primarily revolved around controversial political speech such as "From the River to the Sea, Palestine will be free."

Another reason we dwelled on activities that did not involve protected speech is to emphasize that such activities are not, in fact, protected speech. This should be obvious, and yet…

As I noted yesterday, federal judge Gerald McHugh described a three-day illicit "encampment" at Haverford College as the college allowing "protestors to freely express themselves for three days."

Perhaps more egregiously, last fall Professors Evelyn Douek and Genevieve Lakier wrote:

Administrators have also turned to Title VI to justify their decision-making, including their sometimes significant repression of student speech. For example, in April 2024, Columbia University's then-President Minouche Shafik referred to Title VI to justify her (very controversial) decision to send in the police to break up Columbia's protest encampment.

Breaking up a protest encampment is not only not a "significant repression of student speech," it's not a repression of student speech at all. The students were free to speak; the university had the right, and arguably the legal obligation, to enforce content-neutral time, place, and manner restrictions on the students, and also to stop the students from "occupying" university property, an illegal trespass. Nothing, meanwhile, was stopping the students from tabling, handing out flyers, holding up signs, giving speeches or chanting in ways that didn't disrupt university functions, or otherwise speaking their Hamasnik hearts out.

As with Judge McHugh, I am confident that at least in certain contexts Professors Douek and Lakier would agree that enforcing content-neutral rules against speakers does not violated free speech rights. I doubt, for example, they would defend the freedom-of-expression-right of students to camp out on their front lawns or in their law school offices on behalf of "Palestine" or anything else.

Comments

[Malika the Maiz]

The March on Selma didn’t involve people freely expressing themselves, it was a very long and rough stroll.

[David Bernstein]

So you're thinking that a civil rights march on public property that was denied a permit for racist and unconstitutional reasons is the moral and legal equivalent of a days and potentially weeks-long pro-Hamas occupation of part of a university campus, subject to preexisting rules having nothing to do with the underlying content of the speech? I'd say that a grave insult to the Selma marchers.

[Stephen Lathrop]

Any notion that an otherwise peaceful, "encampment," by students on their own campus, is an illegal trespass by all of them is tyrannical. If you attempt to distinguish as a criminal a person authorized to be in a particular place, at any time, for any other reason, based only on that person being in that place for an expressive reason, then the right to peaceable assembly is gone.

More generally, the notion of time, place, and manner restrictions on expressive activity has no proper Constitutional basis for application to constrain the 1A protected right of peaceable assembly. No legislative power ought to exist to prioritize the use of an otherwise generally available place for an expressive purpose.

In American constitutionalism legislative powers are not superior to Constitutional rights. The very essence of the right of assembly is the power to choose a time and place to do it. Make time and place instead matters for legislative authority, or administrative prerogative, and once again, the assembly right is gone.

That does not apply likewise to all other instances of expression, especially instances where other places and other times may equally afford actually effectual expression of the same ideas by means other than assembly. But actually effectual assembly expression is thwarted whenever liberty to choose time and place is denied.

It is to prevent legislative and administrative government attempts to curtail citizens' rights which justifies the existence of a Bill of Rights. Constraint of government power is the very purpose sought by enumerating the right.

Moreover, a proper originalist reading of founding-era contemporaneous context makes both public streets and public commons into instances of the, "public square." Bernstein's interpretation—and most other time, place, and manner, restrictions on assembly—would have prohibited as lawless most of the public demonstrations used by founding era citizens to advance their politics and found this nation.

Of course private property, including the property of private colleges and universities, may be governed under rules different than U.S. Constitutional rules. But to recognize that as a matter of liberty for property owners, is the opposite of insistence that the proprietors of private colleges and universities can be made subject to government constraint if they authorize for their own students assembly rights which Professor Bernstein disapproves.

[Brett Bellmore]

Of course, it is not incidental that these "encampments" are not actually peaceful. But let us suppose that some group of students peacefully obstructs the sidewalks on campus for several days; Why must the university tolerate this?

These are shared resources, and the university is entitled to mandate that they actually be shared, not seized for the exclusive use of some small group of students.

When I was in college, I was a member of a student organization, and we held regular meetings in a room we'd arranged in advance to use. If we'd just broken into a random room, or set up our meeting across the entry way to the building, obstructing traffic, it would have been entirely legitimate for the school to sanction us, even if we hadn't compounded the offense by beating anybody. Usurping university resources and obstructing other students' use of them would be offense enough.

[David Nieporent]

More generally, the notion of time, place, and manner restrictions on expressive activity has no proper Constitutional basis for application to constrain the 1A protected right of peaceable assembly. No legislative power ought to exist to prioritize the use of an otherwise generally available place for an expressive purpose.

As always, you substitute a wall of text for anything remotely resembling actual legal support for your arguments.

[Stephen Lathrop]

Nieporent — As usual, I get, and you get, that I do not purport to offer legal advice. Nor do I suppose in this instance I advocate any but a contrarian position with respect to the present legal status quo.

On the other hand, your notion of "actual legal support," looks to me like appeal to a bigger wall of text. I think it is one which could be improved by both better reasoning, and more historical contextual insight. In terms of either of those two frames of reference, it seems peculiar to miss the point that an effort to assemble requires liberty to agree on both a time, and on a place to do it.

[ReaderY]

While it’s true that the First Amendment does not require tresspass, it’s also true that a landowner’s choice to permit his land to be occupied does not, by itself, constitute a Civil Rights violation,

[David Bernstein]

But the professors' complaint is not that Columbia's right to determine when to enforce the rules was violated, but that pressure on Columbia egregiously infringed on students' rights, rights the students didn't have.