Free Speech on College Campuses—Legal Analysis Post 2023/24 Pro-Palestine Protests

by Howard Cooper and Rachel Hutchinson

U.S. college campuses are no stranger to protests. From sit-ins during the Vietnam War to anti-Apartheid blockades to the recent Black Lives Matter protests against police brutality, campus activism has long challenged political and social norms.

Since the October 7, 2023, Hamas attack and Israel’s ensuing military incursion into Gaza, pro-Palestine protests have erupted at over five-hundred campuses across the United States, drawing media scrutiny and sparking both praise and criticism. A key feature of the recent pro-Palestine protests was the tent encampments erected across U.S. college campuses, including MIT, Emerson, and Harvard. Some of these encampments remained in place for weeks.

Schools’ responses to the protests varied. While some negotiated a voluntary end to encampments by agreeing to consider student demands, other schools sent in the police. In April 2024, Columbia University became the first to institute mass detainment of protestors, calling on police to break up an encampment and make arrests, resulting in over 100 people being taken into custody.  Later that same month, officers in riot gear used pepper spray to disperse and arrest over 70 protestors at the University of Texas at Austin. Here in Boston, another 100 protestors were arrested and placed in zip-tie handcuffs at Northeastern University. All told, over 3,200 protestors were arrested across campuses nationwide. According to the New York Times, it was the largest number of arrests associated with student activism since the anti-Vietnam War protests.

After dorms and campuses emptied at the end of the 2023/24 school year, most charges against protestors were dropped. But students faced other consequences. Many universities used their codes of conduct to enact internal discipline, suspending students, evicting them from campus housing, barring them from graduation, and withholding their diplomas. While some observers have supported these actions, others have decried them as a violation of students’ constitutional rights.

The pro-Palestine protests and their aftermath highlight a long-existing tension in higher education: balancing free speech on campus while ensuring student safety. This tension is nothing new. Controversy over the limits of acceptable speech on campus—or whether any limits should exist—has existed as long as universities themselves.

As the protests renew with the new school year, we examine four essential questions about free speech on campus they’ve raised.

Public versus private institutions—does it matter?

Yes.

Public universities, like all arms of government, must comply with the First Amendment and its prohibitions against abridging the freedom of speech and freedom of assembly. Private universities do not.

Nevertheless, many private institutions still promise their students a certain level of free speech in school materials like student handbooks, recruiting brochures, and codes of conduct. These promises can sometimes be enforced as contractually binding, depending on when and how they were made. See, e.g., Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998) (holding that the “student-college relationship is essentially contractual in nature” and “[t]he terms of the contract may include statements provided in student manuals and registration materials.”).

Does the First Amendment protect inflammatory or offensive speech?

Yes, so long as the speech in question is neither intended nor likely to provoke imminent unlawful action.

In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Supreme Court held that the government cannot punish inflammatory speech unless it deliberately seeks to “incit[e] or produc[e] imminent lawless action and is likely to incite or produce such action.” Speech that is merely offensive or bigoted does not qualify. In fact, courts have found that even speech that endorses violence remains protected so long as the violence is not imminent.

For example, in NAACP v. Claiborne Hardware Co., 458 U.S. 886, (1982), the Supreme Court held that a speech given by civil rights activist Charles Evers, which included the statement, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck,” did not transcend the bounds of protected speech set forth in Brandenburg. Similarly, in Hess v. Indiana, 414 U.S. 105 (1973), the Supreme Court found that a protestor could not be arrested for telling the crowd at an antiwar demonstration, “We’ll take to the fucking street later,” while the police were attempting to clear the demonstration. “[A]t worst,” the Supreme Court wrote, the protestor’s statement “amounted to nothing more than advocacy of illegal action at some indefinite future time.” Id. at 108. Because the statement was not intended or likely to produce “imminent disorder,” it fell within the bounds of protected speech. Id.

Are encampments protected by the First Amendment?

Yes, but universities can likely still severely restrict, or even ban, encampments.

While the First Amendment’s protections extend to symbolic speech, including sit-ins, rallies, and tent protests like the pro-Palestine encampments, public institutions can set reasonable time, place, and manner restrictions on when, where, and how people protest. Examples include imposing limits on the noise level at certain times of day, capping the number of protestors who can occupy a given forum, or prohibiting protestors from blocking access to buildings or streets. These restrictions must be content-neutral, meaning they must be applied evenly regardless of the subject of the speech at issue, and must be narrowly tailored to serve a significant government interest.

Prohibitions against camping likely qualify as a valid time, place, and/or manner restriction. In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), the Supreme Court found that the National Park Service could bar protestors from sleeping in tents in Lafayette Park and the National Mall pursuant to a regulation prohibiting camping in places other than designated campgrounds. Although the Supreme Court recognized that the planned demonstration was a form of symbolic speech—protestors wanted to bring attention to the plight of the unhoused—the Court found that the National Park Service’s camping regulation was a permissible time, place, and manner restriction because it was content-neutral and furthered the government’s valid interest in maintaining its national parks. Id. at 294-96.

What about threats or harassment?

No. While the First Amendment protects most speech, it does not protect genuine threats, discriminatory harassment, or similar violations of other’s rights.

However, like all exceptions to the First Amendment, these have been narrowly construed. For instance, the Supreme Court has found that only “true threats,” defined as “serious expressions conveying that a speaker means to commit an act of unlawful violence,” constitute a recognized exception to the First Amendment. Counterman v. Colorado, 600 U.S. 66, 74 (2023). The bar for a “true threat” is high. In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court held that a provision in Virginia’s cross burning statute, which stated that burning a cross in public view was “prima facie evidence of an intent to intimidate,” was unconstitutional under the First Amendment. According to the Supreme Court, “a burning cross does not inevitably convey a message of intimidation.” Id. at 357.

What does all this mean for campus protests going forward?

It’s a complex question. It depends on the nature of the protest and the institution in question. Speech that is protected at UMass Amherst (a public university) under the First Amendment may be punished at Harvard (a private university) as against student conduct policies. Students and universities alike should be conscious of the particular protections that apply in their circumstances.

Howard M. Cooper, a Founding Partner of Boston-based Todd & Weld LLP, has over four decades of experience litigating complex civil and criminal disputes, as well as significant civil rights and First Amendment cases, for clients across New England and around the country. Mr. Cooper’s approach to litigation combines practicality, creativity and integrity, and always begins with preparing every case for the potential of trial. 

Rachel Hutchinson, a Senior Litigation Associate at Todd & Weld LLP, concentrates her practice on complex commercial litigation, employment discrimination, and higher education law. She regularly appears in state and federal court on a wide range of matters, and prides herself on her extensive trial experience. Ms. Hutchinson also has a pro bono practice focused primarily on racial justice.