First Circuit Rejects Harassment Claim Based on MIT Anti-Israel Protests: "[W]e Do Not Construe Title VI as Requiring a University to Quash Protected Speech"

A necessarily oversimplified excerpt from the >12K-word Stand with Us Center for Legal Justice v. MIT, decided by First Circuit Judge William Kayatta, joined by Judge Gustavo Gelpi and District Judge William Smith (D.R.I.):

Title VI of the Civil Rights Act mandates that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance." To hold MIT liable for violating this mandate, plaintiffs pursue a hostile environment, or "harassment," theory ….

Because plaintiffs base their claim so heavily on what the protestors said and wrote, we consider first whether plaintiffs' proposed application of a harassment claim under Title VI comports with First Amendment principles….

{[W]e do not construe Title VI as requiring a university to quash protected speech.} In light of [the] overriding interest in open debate, speech made in public that is related to matters of public concern has been given "special protection under the First Amendment" and thus "cannot be restricted simply because it is upsetting or arouses contempt." Snyder v. Phelps (2011) (internal quotations omitted) (protecting speech of Westboro Baptist Church protestors chanting "God Hates You," "Thank God for Dead Soldiers," and "Priests Rape Boys" at a funeral for a deceased soldier); Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (finding a community college was not required to restrict a professor's emails related to immigration, race, and the "preservation of [a] White majority" because "[t]he Constitution embraces … a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race").

Similarly, the Supreme Court has long upheld "[t]he essentiality of freedom in the community of American universities," warning that "[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation." … Here, the student protestors engaged in speech on a matter of public concern—the conflict in Gaza—while on the campus of a private university in which they were enrolled. MIT chose to restrict that speech in part and allow it to continue in part. Now, plaintiffs seek to hold MIT liable, under a federal statute, for its failure to curtail that speech even further.

As a private institution, MIT could choose to curtail political speech by its students without First Amendment scrutiny…. [T]he First Amendment protects against state interference, not purely private conduct …. But MIT's authority to decide for itself whether to prohibit certain political speech is not the issue here. Rather, the question is whether Title VI required MIT to try to put an end to the protestors' speech. And requiring MIT to restrict students' expression merely because those students opposed Israel and favored the Palestinian cause would infringe upon MIT's freedom to encourage, rather than suppress, a vigorous exchange of ideas.

Using Title VI to compel adherence to a preferred political viewpoint would also implicate students' First Amendment freedoms. A law punishing private citizens for expressing political opinions disfavored by Congress would be subject to "the most exacting" First Amendment scrutiny. "When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."

As such, "[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Viewpoint restrictions are all the more perturbing in the context of speech the government deems offensive. Cf. Matal v. Tam (2017) (finding trademark restriction prohibiting an Asian American rock band from registering their band under a derogatory racial term "offend[ed] a bedrock First Amendment principle" that "speech may not be banned on the ground that it expresses ideas that offend"). Nor can the reactions of an offended audience serve as grounds for the government to suppress such speech. See id. (Kennedy, J., concurring in part and concurring in the judgment) ("[A] speech burden based on audience reactions is simply government hostility and intervention in a different guise.").

It makes no difference that, in this case, restriction of speech comes by way of a civil suit brought by private parties. Congress cannot skirt First Amendment concerns by passing a law requiring someone else to punish protected speech. See NRA v. Vullo (2024) (explaining that "viewpoint discrimination is uniquely harmful to a free and democratic society" and holding that "[a] government official cannot coerce a private party to punish or suppress disfavored speech on her behalf"). Likewise, the government cannot empower a private party to punish speech on a matter of public concern absent unusual circumstances not present here. The government may not permit juries to "punish" private speech merely because it expresses an "unpopular opinion," either.

Nor has MIT forfeited its right to make or allow speech disfavored by the government by receiving federal funds for programs or activities unrelated to the speech at issue here. See Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc. (2013) (finding that the First Amendment prohibited a statutory provision that "demand[ed] that [federal] funding recipients adopt—as their own—the Government's view on an issue of public concern," and thus "by its very nature affect[ed] 'protected conduct outside the scope of the federally funded program'").

In sum, the First Amendment erects safeguards that limit the ability of the government or private plaintiffs to punish MIT for not restricting more severely the student protestors' protected speech.

So far, I think the analysis above is quite right: Generally speaking, political speech aimed at the public at large can't be punished as "harassment," even when it's allegedly offensive based on race, national origin, sex, religion, and the like: That would be impermissible "viewpoint discrimination" by the government.

But then the court turns down what I think is a mistaken path, concluding that this particular speech wasn't plausibly alleged to be anti-Semitic (and declining to decide what the result would have been if the speech had indeed been anti-Semitic). Yet given that viewpoint discrimination is unconstitutional, as the court notes above, that has to apply to speech regardless of whether its viewpoint is anti-Semitic or anti-Israeli or merely anti-Israel. Here's the court's analysis; see for yourselves what you think:

[P]laintiffs argue that much of the protestors' speech fell outside the protection of the First Amendment—and thus within the reach of a government censor—because the speech was racist (i.e., antisemitic).

This argument poses two nettlesome issues. First, under what circumstances, if any, can racist speech be punished pursuant to Title VI without violating the First Amendment? See Davis v. Monroe County Bd. of Ed. (1999) (Kennedy, J., dissenting) (reviewing the "difficult [First Amendment] problems raised by university speech codes designed to deal with peer … harassment"); Rodriguez ("There is no categorical 'harassment exception' to the First Amendment's free speech clause." (quoting Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001))); see also Todd E. Pettys, Hostile Learning Environments, the First Amendment and Public Higher Education, 54 Conn. L. Rev. 1, 37–55 (2022) (analyzing hypothetical scenarios under which a university may or may not be able to constitutionally restrict speech for creating a hostile learning environment). Second, even assuming that some racist speech can constitutionally be punished pursuant to Title VI, have plaintiffs adequately alleged that the protestors' expression was racist (i.e., antisemitic)? Because we can decide this appeal without addressing the first issue, we proceed directly to the second….

To support their claim of antisemitism, plaintiffs point to the protestors' opposition to Zionism, which they argue is inherently antisemitic. "Zionism," plaintiffs explain, "is the belief that Jews have the right to self-determination in their ancestral homeland of Israel." Plaintiffs argue that because "most Jews" see Zionism as "a key component of their Jewish ethnic and ancestral identity," "'anti-Zionism' is … antisemitism."

In plaintiffs' view, speech is anti-Zionist, and therefore antisemitic, if it "oppose[s] Jewish self-determination in the State of Israel"; if it "claim[s] that the existence of a State of Israel is a racist endeavor"; if it "requir[es] of [Israel] a behavior not expected or demanded of any other democratic nation"; and if it "draw[s] comparisons of contemporary Israeli policy to that of the Nazis." Under this framework, plaintiffs also treat as antisemitic any criticism of Israel's conduct in Gaza, any suggestion that violence by Palestinians can be understood as resistance to colonial rule and Israeli expansion, and any implication that Palestinians should govern—or even simply be "free"—in all of Palestine (i.e., "from the river to the sea").

Plaintiffs are entitled to their own interpretive lens equating anti-Zionism (as they define it) and antisemitism. But it is another matter altogether to insist that others must be bound by plaintiffs' view. Plaintiffs' equation finds no consensus support in dictionary definitions. Nor does a review of the academic literature point to any consensus that criticism of Zionism is antisemitic. And we do not find it dispositive that the United States Department of State has defined antisemitism as "[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor." As the Supreme Court has repeatedly emphasized, "new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated."

This absence of consensus reflects ongoing debate as to the relationship between anti-Zionism and antisemitism—debate that our constitutional scheme resolves through discourse, not judicial fiat. Indeed, the debate on occasion has been formal and high profile. We decline to interpret Title VI as arming either side of that debate with the powers of a censor.

MIT also had to contend with the inverse of plaintiffs' contention: that Muslim and Palestinian students could, by similar logic, claim that expressing support for Israel's actions in the West Bank and Gaza was Islamophobic or anti-Arab. Indeed, plaintiffs' complaint cites a faculty note arguing that MIT's response to the campus conflict manifested racism against Arab and Muslim students. We struggle to imagine how a university faced with such conflicting views could plausibly eliminate all unwelcome speech without quashing all speech concerning the conflict between Israelis and Palestinians, particularly because—as MIT's president Kornbluth observed in a statement cited by plaintiffs—MIT's community included both "people who lost friends and family to the brutal terror attack of October 7, and people with friends and family currently in mortal danger in Rafah." … "[E]xclusion of several views on [a] problem is just as offensive to the First Amendment as exclusion of only one." …

This is not to say that anti-Zionism is never wielded as a tool of the antisemite. See Gartenberg v. Cooper Union (S.D.N.Y. 2025) (finding that "From the river to the sea, Palestine will be free" graffiti on a bathroom stall that was "made to resemble the stylized font commonly associated with Hitler's Mein Kampf" could be used, among other evidence, to show antisemitic motivation). It is to say, instead, that one person does not lose the right to express a political opinion on a matter of public concern merely because another who expresses the same view does so for condemnable reasons.

One individual might criticize a government program as an inefficient use of taxpayer resources; another might criticize the program because of hostility toward its beneficiaries on the basis of their race or religion. The latter individual's view, while reprehensible, could not justify restricting the former individual's speech, nor imposing a categorical ban on criticism of the program. See NAACP v. Claiborne Hardware Co. (1982) (holding that civil rights protestors did not forfeit their First Amendment rights merely because certain group members' conduct exceeded the scope of constitutional protections); cf. Virginia v. Black (2003) ("The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech."). Nor can the possibility that antisemitism motivates one speaker's anti-Israel speech justify assuming that all criticism of Israel or advocacy for Palestinian sovereignty is motivated by antisemitism. We therefore reject plaintiffs' claimed right to stifle anti-Zionist speech by labeling it inherently antisemitic.

Nor do plaintiffs allege facts that, if true, would otherwise permit the inference that in these specific circumstances the protestors' strident criticisms of Israel were driven by antisemitism. Without such an inference, the protestors' speech cannot constitute racial harassment for Title VI purposes. Here, plaintiffs proffer only conclusory allegations of antisemitic animus that are "not entitled to be assumed true." Plaintiffs allege no facts plausibly establishing that the protestors, as a group, opposed Israeli actions in Gaza or supported the Palestinian cause because of antisemitic animus. Nor do plaintiffs allege facts plausibly showing that the protestors as a group shared plaintiffs' view that anti-Zionism was inherently antisemitic.

We also reject plaintiffs' implicit contention that the choice to criticize Israel's actions in Gaza—rather than, for example, choosing to criticize some other alleged atrocity elsewhere in the world—necessarily manifests antisemitism. Political advocacy, by its nature, involves a choice to focus on certain issues or causes over others. Title VI does not preclude the protestors, U.S. university students, from responding to the headlines by choosing Israel as their target, particularly given the protestors' perception of the significant role played by the United States and U.S.-supplied arms in the conflict between Israelis and Palestinians….

[P]laintiffs claim that accusing Israel of committing genocide against Palestinians is antisemitic. But even prominent Israelis have lodged the same accusation….

[P]laintiffs [also] claim in their brief that some protestors called for the genocide of the Jewish people. But there are no factual allegations supporting this claim. Rather, plaintiffs say that we should construe chants of "from the river to the sea, Palestine will be free" and "intifada revolution" as calls to wipe out the Jewish people as such. But neither slogan says as much on its face, nor do plaintiffs allege facts suggesting that either chant was commonly so construed by the protestors. So plaintiffs must again rely on a theory that they can dictate the interpretation of the protestors' speech in order to suppress it, without any facts suggesting that the protestors were using these slogans in the way plaintiffs claim.

{Amicus curiae National Jewish Advocacy Center (but not plaintiffs) also suggests that calls for "intifada" or chants of "from the river to the sea" were "true threats" unprotected by the First Amendment. True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Plaintiffs themselves make no such argument, never claiming that any alleged expression of intent to commit unlawful violence can plausibly be inferred from the complaint's description of the roughly seven months of peaceful protest.} …

For the rest of the analysis, see the full opinion.

Ishan K. Bhabha and Lauren J. Hartz (Jenner & Block LLP) and Daryl J. Lapp (Troutman Pepper Locke LLP) represent MIT.