The Volokh Conspiracy
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Is "Impeding Travel for Many Students" as Part of a Protest First Amendment-Protected Speech?
The First Circuit says "yes." Really?
Eugene has already blogged about Stand With Us v. MIT, a recent case in which the First Circuit Court of Appeals upheld the dismissal of a hostile environment claim against MIT brought on behalf of Jewish students.
Eugene's post focused on the question of whether a university can be required to suppress speech intensely hostile to Israel and/or Zionists to avoid hostile environment liability. The court said "no," Eugene approves, and as a general matter, I agree.
However, the, court went well beyond that holding, into what I consider bizarre, obviously incorrect legal reasoning. I was particularly struck by this passage:
Our conclusion that plaintiffs have failed to allege actionable racial harassment consists of three parts. To begin, most of the conduct about which plaintiffs complain is speech protected by the First Amendment, and we do not construe Title VI as requiring a university to quash protected speech. Furthermore, by gathering together in groups on campus, disrupting campus tranquility, and impeding travel for many students, the protestors did not render their speech antisemitic, much less unprotected.
Wait, what? Of course, the fact that the students broke MIT rules by, e.g., occupying parts of buildings and building an illicit encampment ("disrupting campus tranquility" and "impeding travel for many students") did not render related protected speech unprotected. But the actions themselves were unprotected, right?
Not according to the court. Here is the key passage:
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.
The theory seems to be that if students were breaking campus rules, and the law, on a private campus while engaging in a protest, that their protest nevertheless constituted protected speech activity unless and until the private university, MIT, ordered them to stop.
That doesn't make any sense to me. Let's say a group of protestors converge on the public sidewalk at the corner of my block, engaging in protected speech. Then, a subgroup of them peel off, and camp out in my driveway, and chant slogans there. For whatever reason, I choose not to ask them to leave my property, nor do I call the police--but I also don't tell them they are permitted to stay. The protestors are still breaking the law, and their "speech," i.e., their protest on my lawn, is not protected by the First Amendment.
I suppose one could argue that I have implicitly given permission by not calling the police, but that strikes me as incorrect. And it seems egregiously in the context of the MIT protest, because not only were the protestors breaking MIT rules, not only were they trespassing and thus violating the law, but "impeding travel for many students" may well be a violation of the 1871 Civil Rights Act (the KKK Act), which bans conspiracies to deprive individuals of their civil rights. MIT can't waive that violation, constructively or otherwise.
The court goes on to suggest that while MIT could, as a private university, restrict student speech, it can't be obligated to do so under Title VI because the speech was pro-Palestinian or anti-Israel.
That's true, but the court completely ignores the menacing nature of the actions taken by the protestors. According the facts alleged in the complaint, which the court was required to accept as true at this stage of the litigation, at the encampment students chanted, in Arabic, slogans that included: "From water to water, Palestine is Arab!"; "Palestine is free, Israel out"; "We want to talk about the obvious, we don't want to see Zionists"; "The iron gates of Al Aqsa, open for the martyr!"; and "From water to water, death to Zionism!"
Also according to the complaint, a Jewish student had previously been assaulted by a masked protestor during the occupation of a building lobby. That protest was sufficiently menacing that MIT Hillel sent out a warning to its email list cautioning students to avoid the area.
The encampment, meanwhile, took place across from Hillel. The court acknowledged that
its impact on Jewish students was plausibly heightened. Indeed, plaintiffs allege that they moved a scheduled Passover seder "to an alternate location" because MIT had not yet cleared the encampment and thus students did not feel comfortable attending the seder at Hillel. But plaintiffs allege no facts to plausibly indicate that the protestors chose Kresge Lawn for their encampment because of its proximity to Hillel rather than for its prominent location and preferred terrain for tents.
The court here seems to entirely miss the point. The question is not whether the encampment intentionally placed next to Hillel. Rather, it's whether a reasonable Jewish student was being subject to a hostile environment sufficiently pervasive so as to be deprived of educational opportunities.
That question must be considered in context, and in context the question is whether when you have (a) masked students chanting violent slogans; (b) a history of at least one assault by in a related protest; (c) an national environment in which other Jewish students were being assaulted by anti-Israel protestors; and (d) an encampment that violated pre-existing campus rules, the encampment created a reasonable fear of violence such that the university was obligated to enforce its own rules to avoid creation of a hostile environment for Jewish students.
The plaintiffs presented tangible evidence of that fear, the fact that they moved their Passover Seder from the Hillel building and thus away from the encampment. The court treats this as if the encampment simply made the students feel uncomfortable due to the encampment's message, rather than acknowledging that the students feared at best having their religious ceremony disrupted by masked protestors, and moreover that any such disruption would include violence.
The plaintiffs also alleged that because of intimidation and threats they were unable to attend classes, lectures, and Hillel events. The court argues, in turn, that the hostile speech experience by the students could not be deemed sufficiently severe and pervasive to constitute a hostile environment.
In doing so, the court makes the error of considering violent and occasional overtly antisemitic rhetoric, the violence and looming threats thereof, and the disruptions caused by the violations of unenforced campus rules and the law independently, as opposed to as a holistic environment.
A recent article in the Harvard Law Review Forum makes the same error. In a response I will soon be posting online, I conclude:
Professors Eidelson and Hellman correctly remind us that the First Amendment limits the extent to which universities may restrict political expression, even when it is grossly offensive. But their analysis undervalues the contextual dimension that makes certain rhetoric—such as calls to "globalize the intifada" or to achieve "liberation by any means necessary"—qualitatively different from mere advocacy or protest. When such slogans (1) are shouted in concert by masked demonstrators affiliated with organizations credibly tied to groups that glorify or sponsor violence, and when these chants (2) coincide with a measurable surge of physical assaults, arson, and death threats directed at Jewish students and American Jews more generally, and the chants (3) are accompanied by illicit campus behavior by a subgroup of the chanters, against whom preexisting rules are not enforce, they operate as components of a broader campaign of intimidation that materially interferes with Jewish students' ability to learn, assemble, and participate fully in university life.
Title VI's "reasonable person" standard must be applied with fidelity to that social reality. Courts .. should recognize that fear of violence, when grounded in contemporaneous incidents and credible threats, constitutes a legitimate and legally cognizable injury. Universities, for their part, may not invoke free-speech principles as a shield for inaction when the protected expression is intertwined with rule-breaking, harassment, or violence. Courts may not transform the First Amendment from a safeguard of discourse into an instrument of impunity for rioting, vandalism, building takeovers and other actions that create the sort of disorder from which violent antisemitism naturally springs.
