While the fighting in Gaza has paused for the time being, there is no sign that anti-Israel and anti-Jewish agitation on college campuses has abated. Attempts to curb such agitation by a handful of administrators have raised objections in the name of freedom of speech and academic freedom, often coming from those who until now have not demonstrated even minimal respect for either. Yet there are some serious concerns to be addressed. Ilya Shapiro, a libertarian jurist with a long record as a champion of freedom of expression, argues that there is ample legal recourse for those who wish to crack down on anti-Israel excesses.
[T]he First Amendment does not protect the incitement of violence, which the Supreme Court has defined as speech that is “directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” The courts have set a high bar on meeting this standard—but it’s surely been reached in some recent cases both on and off-campus.
Take, for example, the pro-Palestine rally in Los Angeles, where, in the course of the event, a sixty-nine-year-old man holding an Israeli flag was struck and killed. Assuming eliminationist or other violent slogans were chanted there, it would be hard to imagine a more direct connection between those chants and actual violence.
Moreover, writes Shapiro, Jewish students may have legal recourse against universities that fail to curb such behavior:
[T]he legal landscape is ripe for both administrative complaints and lawsuits alleging that all these hand-wringing academic grandees have failed to address the very real threats to the physical safety of Jewish students. At Cooper Union, a staffer locked Jewish students in the library for their own protection in the face of demonstrators shouting, “Free, free Palestine.” I’m not sure offering Jews a chance to hide in the attic satisfies Title VI. . . .
We shouldn’t weaken speech protections, which have made America not only the freest country in the world, but the most tolerant. But sometimes “speech” isn’t speech. Sometimes it rises to the level of conduct that prevents others from being able to live their lives. Right now we need people to discern the difference.