The Politics of Speech on the American Campus

Tellingly, these restrictions are also the legal means by which the Foundation for Individual Rights and Expression (FIRE), an organization whose declared mission is to defend free speech, has tried to reconcile its defense of free speech with its recent refusal to defend the free speech of student protesters in the Gaza encampments. As Amia Srinivasan summarizes in an essay for the London Review of Books, FIRE and other supposed defenders of free speech have maintained “that university bans on encampments do not violate the First Amendment, since free speech can legitimately be subject to restrictions on ‘time, place, and manner.’” Where criticism of Israel is concerned, that’s all that university administrators need to stop the First Amendment from protecting the student protesters.

Legally speaking, the application of time, place, and manner restrictions is supposed to be “politically neutral.” But as Srinivasan notes, “it is no secret that university administrators, in their decisions about how to handle the protests, are bowing to partisan political pressure from pro-Israel legislators and donors.” At Columbia, those restrictions were rewritten with the Gaza protests in mind. As Srinivasan explains, the Columbia chapter of Students Supporting Israel was carrying on counterprotests at the same time and place, and yet this group was not suspended.

This does not look like political neutrality. Yet Sunstein says nothing to suggest that he disapproves of the Columbia administration’s conduct. Taking up the example of the Gaza protesters directly, he says the protests were “in violation of the university’s rules about how to use campus spaces”: time, place, and manner rules that “would be exceedingly difficult to challenge.” The protesters could be reclassified as trespassers, and “trespassers can be suspended or arrested.” Thus the freedom to protest melts away, a grand legal principle eviscerated by what will look to many like a technicality. So speaks the existing law that Sunstein likes a lot.

Ad Policy

The law also picks its times to speak. When Srinivasan reminds us that members of “the free-speech brigade” avoided signing open letters in defense of scholars like Jodi Dean, who had been suspended from teaching because of her comments on Israel, and instead “found justifications for the draconian repression of student protest,” she raises the question of whether these protests are often cracked down on primarily because of what they are protesting. As Jeannie Suk Gerson notes in The New Yorker, when, in 2011, Harvard students erected tents on campus during the Occupy movement, the administration decided that time, place, and manner restrictions were secondary and could be overridden by the university’s commitment to freedom of expression. But in 2024, when students mounted the same kind of demonstration, this time against Israel’s war on Gaza, they were severely disciplined. What had changed? Only, it would seem, the target of their protests.

One might argue that there are other reasons why Harvard limited speech in one case and not in the other. Suk Gerson suggests one possibility: the fact that “universities’ commitments to free speech have weakened over time” because of claims (repeated by Harvard’s president) that “someone’s speech constitutes intimidation or harassment.” But no matter what has caused these commitments to weaken, the real takeaway is that university administrations are not constrained by the law. They have always been empowered to ignore time, place, and manner restrictions, however well-grounded those restrictions may be in the law, as Harvard did in 2011 and as other university administrations have done in the past eight months. Administrators can take a morally and politically generous view of what the students are standing up for, whether “existing law” is on their side or not. They can also choose not to do so.

In short, in relying so heavily on the First Amendment, Sunstein misses how so much of what protects or hinders speech happens (as it should) outside the law.

Taking a morally and politically generous view of student speech—and, for that matter, everyone else’s—has long been an important part of what makes a university a university. Academic freedom has long been what has helped regulate and protect this view. But like the Constitution, academic freedom as it is currently understood cannot offer this mission of the university adequate protection for it protects only the speech of tenured faculty and not that of adjuncts, students, librarians, and janitors—all of whom remain subject to the laws of property and the holders of monetary power and institutional authority. These are members of the university community too, yet they can be expelled or fired at will. Anyone who professes satisfaction with academic freedom as it exists today risks playing into the hands of the Republican attack on “educated elites.” When Republicans try to roll back academic freedom because it serves “elites,” their goal must be resisted, but they are not 100 percent wrong.

The need to extend academic freedom so that it covers more people, especially nontenured faculty, is one of the arguments proposed by Michael Bérubé and Jennifer Ruth in their book It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom. Yet they raise another problem with academic freedom: Even when it is interpreted more expansively, they argue, academic freedom is not intrinsically committed to any given politics, and so the freedoms it affords university members to regulate speech on their own can also be shaped by the politics of those university members. Like the law, it is subject to tectonic shifts in public opinion.

In the 1970s and ’80s, for example, scholars who opposed the call to create academic fields and institutes dealing with race, gender, sexuality, and disability claimed they were resisting outside pressure and acting in the name of academic freedom. They lost that battle, and the university is the better for it. Another example: In 2006, the American Association of University Professors took a position against academic boycotts. In August 2024, the AAUP’s “Statement on Academic Boycotts” declared that they could indeed be justified by the mission of higher education. The statement cites South African apartheid and the American war in Vietnam, but the implied context now, of course, is the killing in Gaza, including the almost complete destruction of Gaza’s educational institutions.

Today, as in the past, political and moral commitments can influence the regulatory impulses of academic freedom, for better and for worse. It is again in the name of academic freedom that certain scholars resist calls for divestment from companies profiting from Israeli militarism or from fossil fuels and climate change. Even Derek Bok, who as president of Harvard opposed divestment from apartheid South Africa and says decades later that he has no regrets, admits that on certain burning issues of speech, the university can and should speak out from a political and moral vantage point: The eugenicist views of the Nobel Prize–winning physicist William Shockley “are not shared by the university,” he writes. But if the university can reject Shockley’s racist pseudoscience, why can’t it also speak out against the wholesale murder of Gazan women and children, teachers and students, and those who abet or justify it?

On matters outside the law, Sunstein recommends that university leaders keep their mouths shut—except perhaps on issues of moral extremity. Imagining “an unmistakable threat of Nazism, or something close to it,” he goes so far as to suggest that “perhaps” in that case something might be said after all. Perhaps—the word ought to be inscribed on the tombstone of a university liberalism that is currently slowly dying of its own contradictions. Is our moment not one of moral extremity too?

Columbia’s now-erstwhile president would have likely done better to ignore Sunstein’s advice. Instead of trying to sidestep any reference to politics, Shafik could have told the House sternly that there is indeed no place for genocidal discourse on her campus, but that the Gaza protesters were neither antisemitic nor genocidal. She could have said that, without agreeing with the protesters entirely (that was up to her), she could see why the values they learned at Columbia might lead them to protest against the massacre of civilians. That is, she could have tried to model the university’s mission of not just producing knowledge but subjecting it to civic and moral scrutiny. Unfortunately, she didn’t.