Within the latest wave of student protests happening on college campuses across the United States and in other countries, there is a historical pattern emerging.
“I would say that one of the things to observe is that student protest movements really only come about when there’s a vacuum of moral leadership among the designated officials because the s, the politicians, have not assumed power for justice. In not doing that, a moral vacuum is produced,” noted Roderick A. Ferguson, the author of “We Demand: The University and Student Protests” and professor of women’s, gender, and sexuality studies at Yale University. “That’s when you see young people rise up because the adults are not mounting the ethical charge and enacting an ethical vision, that’s when the young people, historically, rise up. And, it keeps happening and this instance is exemplary of that…There’s no wonder that young people are protesting, it’s not rocket science, it’s a historical pattern.”
It’s a reminder of the student-led protests that took place in the 1960s and ‘70s, with similar criticisms coming from people in positions of power about how the most effective way to agitate for social change is to avoid agitation altogether. Instead, protestors should organize in ways that are received as calm and convenient. Even in attempts at peaceful protest, however, police are deployed and students are suspended or expelled, legislators criticize and legislation condemned by civil rights advocates.
Ferguson and David Loy, legal director of the First Amendment Coalition and former legal director of the ACLU of San Diego and Imperial Counties, each took some time to talk about the history and utility of student protest movements, and the First Amendment protections for free speech and assembly. (These interviews have been edited for length and clarity. )
Q: What are the legal protections, under the First Amendment, for protests on college campuses?
Loy: The First Amendment, generally, protects the right to protest and dissent. It does not grant an unlimited right to protest at any time, place, or manner that one might wish, whatsoever. The First Amendment applies to the government, and as such, does not apply to private colleges and universities. College students in public colleges and universities have robust free speech rights to protest and dissent, not necessarily in any manner whatsoever, at any time and place whatsoever, but there are ways to exercise their right to protest and dissent.
California has a statute called the Leonard Law that actually extends free speech rights to students of private colleges, in some circumstances, that essentially says that a private college cannot discipline students for conduct or speech that would be protected by the First Amendment if it were a public university. The principle is clear, at the core: yes, people have rights to freedom of speech, but how those rights are exercised and what time, place, and manner can be more difficult to address at the margin. That’s going to depend on the facts of any given protest or demonstration.
Q: Are there differences in rights and protections based on the form of the protest? Say, a march versus an encampment?
Loy: Generally speaking, people have a right to protest, march, and dissent. Let me back up for a second — obviously, the government cannot discriminate based on the content or viewpoint of speech and apply one set of rules to people who are for or against a given issue, or one set of rules to politics and one set of rules to another kind of speech. There is not, necessarily, an absolute First Amendment right to camp on public property. There was a case in the 1980s [Clark v. Community for Creative Nonviolence from 1984] where the Supreme Court held that people did not have an absolute free speech right to set up an encampment at Lafayette Park, across from the White House. The plaintiffs in that case were protesting the government’s failure to provide sufficient housing for people and they wanted to set up an encampment in Lafayette Park across the White House to sort of dramatize the point. The Supreme Court said they’re free to protest, free to hold their signs, free to have their march, they’re free to hand out petitions and leaflets and so on, but the First Amendment did not guarantee their right to camp on public property. At that point, the National Parks had some rules and regulations that said there was no overnight camping in Lafayette Park, so the court held that that regulation did not violate the First Amendment because there was not an absolute First Amendment right to camp on public property.
Q: Locally, the response of UC San Diego istration to a pro-Palestinian encampment on campus has come under criticism for its use of police force and arrests in dismantling the encampment. Statements from the chancellor have referred to the university’s of the right to free expression, while maintaining that “The violation of law and campus policy represented by this encampment, however, is not a peaceful protest. It has become dangerous.” Can you talk about the ways that universities have shifted their policies and operations in response to student protests over the years, as outlined in “We Demand”?
Ferguson: I struggle with the question of how much of a shift has taken place because, again, I am struck by how universities are using a playbook, it seems, from the 1960s and from the early ‘70s; the student protester, the student activist, is regarded as the enemy of university order. In that way, there’s a continuity, rather than shift. The shift that has taken place has more to do with, it seems to me, the militarization of the police on college campuses, and in general in U.S. society. For instance, the police in the pro-Palestinian protests are using tactics in arresting the students, rounding them up, that are typical of the way in which you treat terrorists. Students have described, here and in other places, that the folks in the encampment were asked to get out and then the police officers were circling them, and then they would pick off like two students at a time to put into the vehicle that would take them to the jail. It just so happens that it was a Yale shuttle that the students were put in and carted away to jail and not the paddy wagon from the city police. So, they would pick two people off and they’d keep circling them, and they never knew if they would be next. That kind of psychological warfare, counterinsurgency strategy, is a strategy that you would use for an enemy of the state, not your own citizens, not your own young people…What’s striking is that the police have become more militarized, but they are then also using the strategies on their own citizens that have typically been reserved for enemies of the state.
Q: In public remarks about this wave of student protests on campus, legislators and s are emphasizing a for peaceful, nonviolent protests that don’t violate laws, campus policy, cause inconvenience to or interference of university business, damage property or assets, exceed designated noise limits, etc. Can you talk about this controlling of civil disobedience in a way that requires it to avoid disruption, discomfort, and inconvenience? What kind of utility or effectiveness is achieved from protest in this form?
Ferguson: Yeah, let’s answer it through Martin Luther King’s “Letter From Birmingham Jail.” In that letter, King wrote to pastors who identified themselves as liberals and moderates, so Christian and Jewish ministers in Birmingham, Ala., who said to King, ‘You people should tone it down, you’re only making things worse with your activism. You should let these things happen gradually, with time. You’re being too disruptive.” What did King do? King said, ‘You misunderstand the point of direct action. Direct action is only deployed in contexts where you have exhausted all the other means to get people to confront an untenable tension, contradiction, within a society. Direct action is a way for people to creatively cause people and a society to confront its contradictions, its inequalities, its hypocrisy.’ We must also that when King was doing all of this stuff, the sit-ins, the Civil Rights Movement was breaking laws. That’s what civil disobedience is. There’s something fundamental about the social order and also the laws that are covering up racial inequality, social inequalities, oppressions of all types; so direct action is the only way, then, to confront and cause the society to confront those inequalities and those injustices. That’s “Letter From Birmingham Jail.” So, according to King, the civil disruption, these civil inconveniences, those are necessary when a society refuses to confront inequities, injustices, exploitations, and in this case, genocide.
You can’t have the people in power determine the of direct action. Direct action is the contestation of power. It’s supposed to upend power. You can’t have the powerful telling direct action where you can do this and that. That is antithetical to every freedom movement in this country. It is antithetical to the explicit definition bound by the architects of freedom within this country. In this instance, Martin Luther King. It would be like saying, ‘OK, we’ll ask [George] Wallace and Bull Connor what our parameters should be. How would they like to see us contest wrongdoing? What would make them comfortable?’
If you’re a high level official and you want to avoid the inconveniences of civil disobedience, you change the conditions that give birth to civil disobedience—you address the contradictions, you address the inequalities, you address the exploitation, you address the mass killings. History is on the side of young people, again.
Q: What are some First Amendment concerns regarding the U.S. House of Representatives ing the Antisemitism Awareness Act, requiring the Department of Education to adopt the working definition of antisemitism articulated by the International Holocaust Remembrance Alliance, and the ability to continue with pro-Palestinian protest movements on college campuses?
Loy: Generally speaking, criticism of a government and its policy is the core of what’s protected by the First Amendment, and when you’re criticizing policy—the American government, the Israeli government, the Iranian government, the Chinese government, the Canadian government—that is the essence of what is protected by the First Amendment. The First Amendment also protects the right of people to hold and state views that may be very offensive to some, or many, people without condoning those views or approving those views. The First Amendment requires the government to protect the right of people to express their opinions and point of view. That position, that speech, may be hateful or offensive to some or many people, but the government does not get to pick and choose sides as to the speech that it is required to protect. In some circumstances, some conduct can become so severe or pervasive that it amounts to prohibited harassment, whether in the workplace or in the academy, but the legal standard for harassment is that it must be severe or pervasive. The mere expression of a point of view, however offensive that point of view may be, does not amount to harassment, and that’s true whether the point of view is antisemitic or racist or sexist. Again, without condoning or approving the content of that speech, the First Amendment requires the government to respect people’s right to freedom of speech. I haven’t parsed the language of that particular bill, but I am aware that others have raised significant concerns about it, I presume because they’re concerned that it would violate the right to freedom of speech because it would go beyond addressing the kind of harassment that can be validly prohibited.
Q: What kind of balance can be struck, particularly in a space like a college campus, between upholding freedom of speech and the right to assemble, and reducing the potential for harm from what is perceived as hate speech?
Loy: I think you need to define what “harm” and what “hate speech” is because the First Amendment does not contain any exception for so-called hate speech, right? Speech that expresses a point of view that may be hateful is protected by the First Amendment and the First Amendment does not allow the government to take action against people merely because they express a point of view, or say things, that others might find hateful or offensive. That’s not to approve or condone the content, but the government cannot, and is not allowed to, take action against people simply because they say things that others find hateful or offensive. That is bedrock law. There is nothing more fundamental to the First Amendment than that the government cannot take action against people simply because the speech is unorthodox, unconventional, or offensive. That is why we have a First Amendment, to protect the people from the government, to protect the right to dissent. The reason we have that is that hate speech is in the eye of the beholder, and the first victim of censorship is never the last. So, any claim that something is hate speech can be converted into a rationale for censoring anything that anyone says, sooner or later. That will inevitably blow back on people who are in the minority and who express protest or dissent in strong against whoever’s in power. If someone in power can claim, ‘Well, that’s hate speech. That’s hate speech against White people, that’s hate speech against Christians, therefore we can censor it,’ that is not a Pandora’s box we want to open, in my view.
The very purpose of a college campus is precisely to encourage robust debate, to be a forum for freedom of speech and exchange of views, however difficult or controversial the issues might be. I understand, I mean, I get it—this is an intensely emotional time and there are very strongly-held views. This is why we have a First Amendment to protect people’s right to engage in that debate.
