The First Amendment on Campus

Last spring, protests over the war in Gaza erupted on college campuses across the United States. Students marched, gave speeches, set up tent encampments, and occupied school administration buildings.

Most of the protesters opposed the Israeli military’s fierce bombardment of Palestinian cities, which came after armed members of Hamas, the militant group then in control of Gaza, staged a deadly surprise attack on Israel in October. Some counterprotesters vehemently defended Israel’s response.

The majority of the protests remained peaceful. But some students used forceful or provocative language in support of the Palestinian cause. Many Jewish students expressed fear for their safety or accused protesters of anti-Semitism.

In response to the protests, which sometimes caused major disruptions to campus activities, some college administrators threatened students with expulsion or called in the police to clear encampments and arrest students.

Regardless of the outcomes of the demonstrations, they put a spotlight on the right to protest, as established by the First Amendment. Here are five things you need to know to understand how the First Amendment applies to campus protests.

Last spring, protests over the war in Gaza spread on college campuses across the United States. Students marched and gave speeches. They set up tent encampments and even occupied school administration buildings.

Most of the protesters opposed the Israeli military’s fierce bombardment of Palestinian cities. The bombing started after armed members of Hamas, the militant group then in control of Gaza, staged a deadly surprise attack on Israel in October. Some counterprotesters strongly defended Israel’s response.

The majority of the protests remained peaceful. But some students used forceful or provocative language in support of the Palestinian cause, and many Jewish students expressed fear for their safety. Some also accused protestors of anti-Semitism.

The protests sometimes caused major disruptions to campus activities. In response, some college administrators threatened students with expulsion or called in the police to clear encampments and arrest students.

The demonstrations put a spotlight on the right to protest, which was established by the First Amendment. Here are five things you need to know to understand how the First Amendment applies to campus protests.

When James Madison wrote the Bill of Rights in 1789, the United States had not long ago freed itself from the absolute rule of a British king who forbade the colonists from speaking critically about the government and its officials.

Madison’s inclusion of the right “peaceably to assemble” in the First Amendment, along with guarantees of freedom of speech, religion, and the press, and the right to petition the government, shows how important it was to the Constitution’s framers to allow Americans to express themselves.

“Free speech is a pivotal part of our country’s culture,” says Lindsie Rank, director of Campus Rights Advocacy at the Foundation for Individual Rights and Expression (FIRE). “It’s part of how our democracy functions.”

James Madison wrote the Bill of Rights in 1789. The United States had recently freed itself from the absolute rule of a British king. Colonists had been forbidden from speaking critically about the British government and its officials.

The Constitution’s framers felt strongly about the right of Americans to express themselves. Madison included the right “peaceably to assemble” in the First Amendment. He also wrote guarantees of freedom of speech, religion, and the press. Also included was the right to petition the government.

“Free speech is a pivotal part of our country’s culture,” says Lindsie Rank, director of Campus Rights Advocacy at the Foundation for Individual Rights and Expression (FIRE). “It’s part of how our democracy functions.”

Public universities, which are funded by state governments, must adhere to the First Amendment, and the same is true for public high schools and all government entities. So students on campus can assume they have First Amendment protections (see items 3 and 4 for a few key exceptions).

“If you’re in an open, outdoor area of a public college campus, that’s very similar under the law to being in a public park,” Rank says.“It’s public land, it’s a public institution, the people who run it are public officials.”

Public universities, which are funded by state governments, must adhere to the First Amendment. This also applies to all public high schools and all government entities. So students on campus can assume they have First Amendment protections (see items 3 and 4 for a few key exceptions).

“If you’re in an open, outdoor area of a public college campus, that’s very similar under the law to being in a public park,” Rank says. “It’s public land, it’s a public institution, the people who run it are public officials.”

Private universities, however, can set their own standards for speech and protest. By and large, as educational institutions, most of them have traditionally committed to protecting free speech.

“They see foundational First Amendment principles as serving their missions,” says Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which is a private institution. “Even if they’re not bound by the First Amendment, it’s generally important to universities to foster spaces in which people can explore ideas and disagree with one another.”

Private universities, however, can set their own standards for speech and protest. Most of them have traditionally committed to protecting free speech.

“They see foundational First Amendment principles as serving their missions,” says Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which is a private institution. “Even if they’re not bound by the First Amendment, it’s generally important to universities to foster spaces in which people can explore ideas and disagree with one another.”

“Almost anything” can be said at a protest, Jaffer says. But there are a few key exceptions. If the rhetoric is intended to provoke what the Supreme Court has termed “imminent lawless action,” it’s not considered constitutionally protected. In essence, that means you can’t urge someone to commit a crime or a violent act in a situation where they could follow through with it.

“If you are in front of a mob of people who all have torches that are lit and you say, ‘Let’s go burn down that building,’ and they do it, that’s incitement to violence, which is not protected by the First Amendment,” FIRE’s Rank says.

But a chant advocating violence more generally is protected, meaning that even some uncomfortable, distasteful speech may not be subject to discipline by the government.

The First Amendment also protects “symbolic speech,” which means communicating through actions like marching, carrying a sign, or even burning the American flag.

“Almost anything” can be said at a protest, Jaffer says. But there are a few key exceptions. If the words are intended to cause what the Supreme Court has termed “imminent lawless action,” it’s not considered constitutionally protected. That means you can’t urge someone to commit a crime or a violent act in a situation where they could follow through with it.

“If you are in front of a mob of people who all have torches that are lit and you say, ‘Let’s go burn down that building,’ and they do it, that’s incitement to violence, which is not protected by the First Amendment,” FIRE’s Rank says.

But a chant advocating violence more generally is protected. Some uncomfortable, distasteful speech may be allowed.

The First Amendment also protects “symbolic speech,” which means communicating through actions like marching, carrying a sign, or even burning the American flag.

Some threatening or discriminatory behavior, however, is illegal under federal civil rights law—which applies to all public and private universities that receive any federal funding.

“[The law] refers to behavior that is pervasive and repeated, and interferes with anybody’s ability to learn and fully participate in the activities of that educational institution,” says Sarah Ludington, director of the First Amendment Clinic at Duke Law School.

The courts are still grappling with the line between free speech and discrimination. For instance, both Jewish and pro-Palestinian students have filed civil rights complaints against Columbia University, claiming that the school did not respond to protesters’ harassment against both groups.

Some threatening or discriminatory behavior, however, is illegal under federal civil rights law. This law applies to all public and private universities that receive any federal funding.

“The [law] refers to behavior that is pervasive and repeated, and interferes with anybody’s ability to learn and fully participate in the activities of that educational institution,” says Sarah Ludington, director of the First Amendment Clinic at Duke Law School.

The courts are still grappling with the line between free speech and discrimination. For instance, both Jewish and pro-Palestinian students have filed civil rights complaints against Columbia University. They claimed that the school did not respond to protesters’ harassment against both groups.

In short, no. The courts have consistently recognized that the government may sometimes regulate logistical details associated with speech. This is known as the “time, place, and manner” doctrine.

“You can’t do whatever you want just because you have something to communicate,” says Donna Lieberman, executive director of the New York Civil Liberties Union.

For instance, staging a protest near the entrance to the White House would not be protected under the First Amendment because the government needs to protect the security of the president and people have to be able to enter to do their jobs. But activists can stage protests in Lafayette Square, just across Pennsylvania Avenue.

Noise ordinances are a classic example of time, place, or manner restrictions, experts say. They regulate the time people can express themselves—say, restricting noise over a certain volume between 10 p.m. and 7 a.m.—and the manner. You can still express yourself during those hours, but not with amplified sound such as using a bullhorn or speaker.

These kinds of rules provide grounds for regulating protests without violating students’ First Amendment rights. But the courts have made it clear that the restrictions can’t be so onerous that protesters can’t get their messages heard.

No. The courts have consistently recognized that the government may sometimes regulate some details associated with speech. This is known as the “time, place, and manner” doctrine.

“You can’t do whatever you want just because you have something to communicate,” says Donna Lieberman, executive director of the New York Civil Liberties Union.

For instance, staging a protest near the entrance to the White House would not be protected under the First Amendment. The government needs to protect the security of the president and people have to be able to enter to do their jobs. But activists can protest in Lafayette Square, just across Pennsylvania Avenue.

Noise ordinances are a classic example of time, place, or manner restrictions, experts say. They regulate the time and way people can express themselves. For example, noise over a certain volume can be restricted between 10 p.m. and 7 a.m. You can still express yourself during those hours, but not with amplified sound such as using a bullhorn or speaker.

These kinds of rules provide grounds for regulating protests without violating students’ First Amendment rights. But the courts have made it clear that the restrictions can’t be so strict that protesters can’t get their messages heard.

Some campus protesters consider their encampments to be a form of speech, but the courts have held that restrictions on overnight camping, even on public property, do not violate the First Amendment.

The Supreme Court ruled in 1984, for example, that the National Park Service could refuse a request from protesters seeking to raise awareness about homelessness to spend nights in “symbolic tents” near the White House under its regulations against sleeping in places that were not classified as campgrounds.

Many universities have rules against setting up temporary structures, and therefore, encampments wouldn’t be protected speech on those campuses.

“You could still express yourself by going out to the quad with a sign, for example,” FIRE’s Rank says. “These rules leave open alternative channels for communication.”

Some campus protesters consider their encampments to be a form of speech. The courts, however, have ruled that restrictions on overnight camping, even on public property, do not violate the First Amendment.

The Supreme Court ruled in 1984 that the National Park Service could refuse a request from protesters seeking to raise awareness about homelessness. The protesters wanted to spend nights in “symbolic tents” near the White House. The court based the ruling on regulations against sleeping in places that were not classified as campgrounds.

Many universities have rules against setting up temporary structures. Therefore, the encampments wouldn’t be protected speech on those campuses.

“You could still express yourself by going out to the quad with a sign, for example,” FIRE’s Rank says. “These rules leave open alternative channels for communication.”

So if students decide to violate those rules, are they just asking for trouble? In some cases, yes.

“That constitutes civil disobedience,” Lieberman says. “Civil disobedience is a time-honored tactic of nonviolence where individuals or movements violate laws in order to make a point and are aware that there might be consequences.”

Civil rights leaders such as Martin Luther King Jr. and Mahatma Gandhi were famous for using civil disobedience to protest against racial and economic injustice.

“Many of the students [who] are protesting now . . . see themselves as part of that same tradition,” Jaffer says. “How should universities respond when students violate [restrictions on protest], citing the tradition of civil disobedience? This is still a hotly debated issue.”

So if students decide to violate those rules, are they just asking for trouble? In some cases, yes.

“That constitutes civil disobedience,” Lieberman says. “Civil disobedience is a time-honored tactic of nonviolence where individuals or movements violate laws in order to make a point and are aware that there might be consequences.”

Civil rights leaders such as Martin Luther King Jr. and Mahatma Gandhi were famous for using civil disobedience to protest against racial and economic injustice.

“Many of the students [who] are protesting now. . . see themselves as part of that same tradition,” Jaffer says. “How should universities respond when students violate [restrictions on protest], citing the tradition of civil disobedience? This is still a hotly debated issue.”