The Volokh Conspiracy
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U.S. Commission on Civil Rights Testimony on Anti-Semitism on College Campuses and the First Amendment
I testified on the subject yesterday, together with other leading scholars, such as Michael Dorf (Cornell), Benjamin Eidelson (Harvard), and Genevieve Lakier (Chicago); you can see the written statements here, and more on the hearing here. I thought I'd pass along my statement, which I imagine won't be at all surprising to long-time readers:
Dear Commission Members:
I was asked to testify about how the First Amendment affects the government's ability to deal with anti-Semitism on college campuses. Here are my general thoughts.
[1.] No First Amendment Exception for Hate Speech
The First Amendment protects all viewpoints, including anti-Semitic and otherwise prejudiced ones. There is no First Amendment exception for "hate speech," advocacy or defense of genocide, or other such views. And that extends even to generally available government benefit programs: The government, for instance, can't exclude "[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground" from trademark registration.[1] Nor can this be evaded by recharacterizing the expression of such viewpoints as "harassment."[2] "There is no categorical 'harassment exception' to the First Amendment's free speech clause."
And this is an important protection for all speakers. For instance, the lack of any exception for speech that supposedly promotes "genocide" protects pro-Hamas speakers—but it also protects pro-Israel speakers who seek to defend Israeli actions in Gaza, despite claims that those actions themselves constitute "genocide" of Palestinians. I personally generally support Israel's right to exist, and I think that this means that Israel must be able to try to destroy those who have attacked it (such as Hamas), even when the attackers deliberately hide among civilian populations who will then inevitably be killed or injured in the resulting war. But speech defending Israeli actions (and even calling for harsher actions) is constitutionally protected regardless of whether university administrators or judges agree with me. Likewise for speech condemning Israel or even praising Hamas.
Likewise, there is no exception for speech calling for the armed destruction of a foreign nation. Again, I believe Israel has a right to exist, but others disagree—and we are all equally protected by the First Amendment, as are those who would call for, for instance, armed attack on North Korea, Iran, and any other country.
[2.] Public Universities Can't Restrict Student Speech Based on Viewpoint
This First Amendment protection also means that public universities generally can't suppress student speech on the grounds that it expresses disfavored views, including views that are perceived as racist, anti-Semitic, anti-Muslim, anti-gay, anti-trans, and so on.[3] Indeed, they can't even exclude "discriminatory" "viewpoint[s]" from student group funding programs.[4] Many private universities have, I think wisely, also agreed to be bound by these principles. (The law in California, where I live, also imposes such a requirement on most private universities.[5])
[3.] The Federal Government May Not Pressure Public or Private Universities to Restrict Student Speech Based on Viewpoint
Such First Amendment protection also means that the federal government can't pressure universities, public or private, to suppress student speech on the grounds that it expresses such views. The federal government cannot, for instance, cut off federal funds to universities on the grounds that they allow such views. And federal courts can't impose liability under Title VI on universities on the grounds that they allow such views. This is just a reflection of the broader First Amendment principle that,
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.[6]
"That a private institution … is generally free to regulate its students' speech without regard for the First Amendment … is irrelevant to the question of whether Congress may compel it to do so via the threat of civil liability under Title VI."[7]
"However noble the objective of nondiscrimination, institutions cannot be threatened with civil liability for declining to censor First Amendment protected speech."[8] Because of this, courts "do not construe Title VI as requiring a university to quash protected speech."[9] In particular, "requiring [a private university] to restrict students' expression merely because those students opposed Israel and favored the Palestinian cause would infringe upon [the university's] freedom to encourage, rather than suppress, a vigorous exchange of ideas."[10]
[4.] Universities May Restrict Speech That Falls Within First Amendment Exceptions
The First Amendment, however, does not protect speech that falls within First Amendment exceptions, such as for
- "true threats" of illegal conduct;[11]
- incitement of imminent illegal conduct that is intended to likely to cause such conduct;[12]
- solicitation of specific illegal conduct against specific targets that is intended to cause such conduct (even if it not imminent or likely);[13]
- "fighting words," defined as face-to-face personal insults that are likely to provoke a fight.[14]
Likewise, though more controversially, I think the First Amendment sometimes does not protected unwanted speech said to a particular person, in circumstances where it is clear that the person does not want to hear such speech. In the Supreme Court's words, "no one has a right to press even 'good' ideas on an unwilling recipient."[15]
Thus, the government may impose consequences for such constitutionally unprotected speech or constitutionally unprotected conduct (through disciplinary measures imposed by a public university, through withdrawal of federal funds, or through Title IX liability) when the speech or conduct is severe and pervasive enough to create a hostile, abusive, or offensive educational environment based on race, national origin, sex, or the like. Thus, for instance, if a university tolerates threats of violence against, say, black students or Jewish students or Israeli students or white students or Arab-American students, it might be subject to withdrawal of federal funds or liability, if the incidents are severe and pervasive enough. Likewise if it tolerates actual violence, or solicitation of violence, or targeted one-to-one harassment, or discrimination in grading or class assignments, or some mix of these.
[5.] Universities May Also Impose Content-Neutral Time, Place, and Manner Restrictions on Speech
The First Amendment also does not preclude public universities' content-neutral enforcement of content-neutral time, place, and manner restrictions on speech that are aimed at preventing physical disruption of the main business of universities, which is education. The government can, for instance, ban
- loud noise where students are studying;
- encampments through which students (or others) occupy university property that other students are equally entitled to use;[16]
- blocking of passages and building entrances; or
- intrusion into faculty and administration offices.
Indeed, because the First Amendment requires that any such policies be enforced neutrally, as well as written neutrally, universities can't tolerate open violations of these policies: If a universities, for instance, allows pro-Palestinian groups to violate these policies, it would have to do the same for (just to give a few examples) anti-abortion groups, anti-immigration groups, white supremacist groups, and anyone else.[17]
Indeed, giving a de facto exemption from content-neutral rules to protesters who express anti-Semitic or anti-Israel views—when it seems unlikely that such an exemption would have been given to protesters who violate the rules while expressing, say, anti-black or anti-gay views—would itself convey a message to Jewish or Israeli students that they are unwelcome. A university can and should protect anti-Semitic and anti-Israeli speech equally with other speech, and that certainly doesn't mean the university supports such speech. But when it protects such speech more than it would protect other speech, it would be sending a message that university leaders (or at least a considerable subset of such leaders) implicitly endorse such speech, by giving it specially favored treatment.
[6.] Universities May and Should Protect Speakers from Disruption
In particular, the First Amendment doesn't prevent universities from protecting speakers from disruption, whether the disruption stems from threats, physical obstruction, noise, or other such behavior. That is a form of permissible content-neutral restriction on the time, place, and manner of speech. Universities would likely not allow, for instance, pro-civil-rights speakers to be shouted down by white supremacists, or pro-abortion-rights speakers to be shouted down by anti-abortion protesters. They likewise shouldn't allow pro-Israel (or pro-Palestinian) speakers to be shouted down by hecklers.
Indeed, universities ought to provide such protection, as part of their educational mission of promoting reasoned discussion and debate. And they should provide it equally to all speakers, without charging extra security fees for certain speakers based on their controversial views.[18]
[7.] Universities May Speak Out Against Anti-Semitic Speech, but Have No Obligation to Speak Out on Foreign Conflicts or Atrocities
The First Amendment does not prevent universities from speaking out against anti-Semitic speech, and certainly not from speaking out against speech that violates neutral campus rules. But Title VI doesn't require that universities engage in such speech, and it certainly doesn't require that they more broadly take a stand on the Israeli-Palestinian conflict, or even that they condemn Hamas atrocities. Indeed, it cannot require that, since that would be an impermissible speech compulsion; speech compulsions are generally just as unconstitutional as speech restrictions. "The First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say."[19] "There is no basis whatsoever, either under Title VI, nor within the confines of the First Amendment, for a court to hold a college administrator liable for failing to convey a specific message that students would have liked to see."[20]
Indeed, I think that on balance it is better if universities stay away as much as possible from such commentary on contested political and social questions, whether foreign or domestic (even if it is sometimes necessary for universities to speak out as to specific misconduct by students or others on campus). Here as on other questions, I think the Kalven Report from the University of Chicago offers helpful guidance, in generally calling for "a heavy presumption against the university … expressing opinions on the political and social issues of the day."[21]
[8.] Universities Should Encourage Reasoned, Thoughtful Debate
Universities, should, however, affirmatively encourage reasoned, thoughtful discussion on matters related to the Israeli-Palestinian conflict, as well as on other matters. Indeed, if university leaders believe that students aren't hearing enough from both sides on the matter, the universities should themselves organize panels and debates that offer thoughtful, balanced analysis of these issues. Such reasoned discourse, presented with the imprimatur of the university, can offer a model for students to think about such matters, and can in some measure counteract the prejudice and hostility that other groups may be seeking to sow.
[1] Matal v. Tam, 582 U.S. 218, 246 (2017) (lead opin.).
[2] Stand With Us Center for Legal Justice v. MIT, 158 F.4th 1, 15 (1st Cir. 2025); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.); Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010).
[3] See, e.g., Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1184–85 (6th Cir. 1995); DeJohn v. Temple Univ., 537 F.3d 301, 316–17, 320 (3d Cir. 2008); McCauley v. Univ. of V.I., 618 F.3d 232, 237–38, 250 (3d Cir. 2010); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.3d 386, 388–89, 391, 393 (4th Cir. 1993). See also, e.g., Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 710 (9th Cir. 2010) ("Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought. We therefore doubt that a college professor's expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek.").
[4] Christian Legal Society v. Martinez, 561 U.S. 661, 696 n.26 (2010).
[5] Cal. Educ. Code § 94367.
[6] NRA v. Vullo, 602 U.S. 175, 188 (2026).
[7] Gartenberg v. Cooper Union, 765 F. Supp. 3d 245, 261 (S.D.N.Y. 2025).
[8] Landau v. Corp. of Haverford Coll., 789 F. Supp. 3d 401 (E.D. Pa. 2025).
[9] Stand With Us Center for Legal Justice v. MIT, 158 F.4th 1, 11–12 (1st Cir. 2025).
[10] Id.
[11] Counterman v. Colorado, 600 U.S. 66 (2023).
[12] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[13] United States v. Hansen, 599 U.S. 762 (2023); United States v. Williams, 553 U.S. 285 (2008).
[14] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Gooding v. Wilson, 405 U.S. 518 (1972).
[15] Rowan v. Post Office Dep't, 397 U.S. 728, 738 (1970).
[16] See generally Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
[17] See, e.g., Hoye v. City of Oakland, 653 F.3d 835, 849 (9th Cir. 2011) (holding that the government violated the First Amendment in its "enforcement and application" of a facially neutral speech restriction, when the restriction was applied against anti-abortion speakers but not other speakers).
[18] See Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992); Sonnier v. Crain, 613 F.3d 436, 447–48 (5th Cir. 2010) (applying Forsyth County to public universities), reaffirmed in relevant part on rehearing, 634 F.3d 778, 778–79 (5th Cir. 2011).
[19] See Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988).
[20] Landau v. Corp. of Haverford Coll., 789 F. Supp. 3d 401, 418 (E.D. Pa. 2025).
[21] See https://www.thefire.org/sites/default/files/2023/10/Kalven%20Report.pdf.
