Civility, Free Speech, and Israel

A recent letter provides university officials with excellent advice on free speech in connection with issues of Israel and Palestine. The bottom line is this: Political speech, regardless of its civility, is protected by the First Amendment.

The letter, sent November 4 to over 140 universities, was signed by seven attorneys and officers representing the Center for Constitutional Rights, the National Lawyers Guild, Palestine Solidarity Legal Support, Advancing Justice, and the Council on American-Islamic Relations. It makes two points. First, the expression of political views does not violate the civil rights of those who object to those views. Second, the First Amendment protects speech regardless of its "civility."

The letter begins by noting the present context:

Recently, expression about Israel, Palestine, and the United States' role in the Middle East has been a flashpoint for university administrators who have been asked to condemn certain viewpoints, monitor student expression or activism, and in some cases, to censor or punish students or faculty based on their opinions about these issues.

Acknowledging the challenge posed by "the deeply-held beliefs and passions of students, faculty, and community members," the letter urges:

We hope your university--through its policies, public statements, and actions--will treat freedom of speech not as a burden or a legal limitation, but rather, as a foundational value that enables searching scholarship and democratic governance.

The letter then puts its first point as follows:

Expression of political viewpoints, standing alone, is not "harassment" and does not create a "hostile educational environment" under Title VI of the Civil Rights Act of 1964.

The U.S. Department of Education's Office for Civil Rights, the letter notes, has received multiple complaints alleging that "expression criticizing the state of Israel or advocating for Palestinian human rights ... creates a 'hostile educational environment' for Jewish students." To date, however, "no such complaint has been sustained or found to have legal merit."

The letter provides several illustrations, including challenges to creative forms of activism involving the use of mock checkpoints or mock eviction notices. With regard to the First Amendment protection of political speech, the letter concludes:

No doubt, harassment or intimidation of any student on the basis of race, color, or national origin triggers Title VI obligations. However, as the U.S. Department of Education has stated, mere expression of political viewpoints, whether through pamphlets, theater, demonstrations, or otherwise, does not, standing alone, give rise to a Title VI violation simply because some may find it offensive.

The second of the letter's two major points is presented even more succinctly than the first:

There is no "civility" exception to the First Amendment.

The letter notes recent controversies about civility. At the University of Illinois, the consequences of the unhiring of Professor Steven Salaita are still unfolding. At the University of California, Berkeley, the Chancellor was fiercely criticized by local faculty and national media for a statement pitting civility against freedom of speech. At Ohio University the student government president found herself condemned by administrators for a "Blood Bucket Challenge" related to Gaza.

The letter also recalls a case in which members of the San Francisco State University College Republicans stomped on flags of Hamas and Hezbollah. Other students complained that this was not "civil" because the flags depict the Arabic word for God, leading to an investigation of whether the student organization violated the student code of conduct. The case ultimately landed in federal court and resulted in a 2007 ruling that the protections of the First Amendment are not limited to

forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason.... [The university's] requirement "to be civil to one another" [unconstitutionally threatens the freedom] to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause.

The concept of civility, the letter warns, is "vague and highly subjective." Because it is so "elastic," it is readily employed "selectively" to silence political views deemed objectionable. Regardless of who is silenced, requirements of civility threaten anyone with a passionate view.

Universities, concludes the letter, must uphold "the paramount ideals of freedom of speech and academic freedom ... even in the face of great public outcry." That's not only good legal advice for public universities. It's good academic advice for all academic institutions.