Colleges grapple with guarding free speech, condemning hate speech

(NewsNation) — Presidents of some of the nation’s top universities faced grilling from Congress over reports of antisemitism on campus in a hearing that illustrated the challenges schools face when balancing free speech with protecting students.

Former University of Pennsylvania President Liz McGill has already resigned over her responses. Harvard issued a statement backing President Claudine Gay even as Rep. Virginia Foxx, R-N.C., announced an investigation into the school.

The Israel-Hamas war has sparked protests on both sides, from those backing Israel’s response to the Oct. 7 Hamas attack and from pro-Palestinian protesters who object to Israel’s bombardment of Gaza. Universities have reported a rise in both antisemitism and Islamophobia.

For public universities, there is an obligation to abide by the First Amendment, which does not exempt hate speech. Historically, the Supreme Court has avoided interpreting the amendment, meaning public universities must allow speech on campus, even if it’s objectionable.

Private institutions, however, can limit what is allowed on campus. The First Amendment only applies to governments and publicly-funded institutions, allowing private businesses to restrict speech however they wish.

The issue is complicated by debates over what constitutes antisemitic speech or conduct. Some incidents are easy to define as antisemitic, like graffiti of swastikas found on buildings. There is an ongoing debate, though, over whether criticism of Israel’s actions during and leading up to the current war or anti-Zionist statements are by nature antisemitic.

The American Jewish Committee, for example, defines anti-Zionism as inherently antisemitic because it opposes the existence of a Jewish state. The organization also calls the “Boycott, Divestment and Sanctions” (BDS) movement — which calls on organizations to boycott Israeli products and divest investments in Israel —antisemitic as well. However, it does note that criticism of Israel’s actions, similar to how other countries are criticized, is not antisemitism.

Others disagree, arguing anti-Zionism can cross the line into antisemitism when it draws on antisemitic tropes and conspiracy theories, but criticisms of Israel’s policies — which some have compared to apartheid — or Israel’s identity as an ethnostate do not, in that view, equate to antisemitism.

That disagreement leaves universities in the position of having to determine when pro-Palestinian protests and criticism of Israel’s policies cross a line that merits disciplining students or faculty or banning groups from campus.

There is no clear definition of hate speech, according to the American Library Association, leaving it up to school leaders to make that determination as far as discipline.

“Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group,” the ALA says on its website.

The Biden administration recently announced it would investigate several universities under Title VI, which bans harassment or discrimination based on race, national origin or ethnicity. Title VI doesn’t specifically ban discrimination based on religion because religious schools can make decisions based on faith, but it has been interpreted to cover discrimination based on a religious group’s shared ancestry or characteristics.

Some universities have already banned pro-Palestinian groups only to have new ones form. The ACLU has warned against banning such groups, even as the Biden administration and Congress investigate universities for allowing groups that have been labeled antisemitic.

While there may be debate over what constitutes antisemitism, both Jewish and Muslim groups on campus can agree on one thing: Both groups have seen a rise in harassment and doxxing based on their views. And actions, unlike speech, don’t have First Amendment protection.