/ Notes for the Field

Notes for the Field

What We Have Learned About Campus Free Speech Since October 7

"There is no retreat on campus from the hard questions about freedom and equality."
James Loeffler, a Senior Fellow of the Kogod Research Center at the Shalom Hartman Institute of North America, is Felix Posen Professor of Jewish History at Johns Hopkins University. He is the author of the award-winning book Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century and co-editor of the Association for Jewish Studies Review. His scholarly research explores the ties between law, culture, and politics in modern Jewish history. His writings also include  The

Palestine has become the free speech/hate speech issue of our time. It has scrambled right-left positions on the First Amendment: Conservatives are abandoning their libertarianism to demand schools censor offensive slogans and disturbing ideas, insisting that to defend Jews, we must place limits on free speech. Progressives are embracing libertarianism, arguing that to defend Palestinians, we need unfettered free speech and that verbal aggressions pale in comparison to riot police arresting students.  

Between these two camps stand the liberals. And they are confused. Accustomed to celebrating civil disobedience as democracy’s great strength, in this case they find themselves disturbed by the tenor and views being expressed. The images and slogans emerging from these campus protests, even if partial glimpses of a complex reality, provoke fear and outrage. Anti-war movements are not supposed to hail terrorist groups. Holocaust analogies should be reserved for other global conflicts. College protesters are not supposed to demonize their fellow students. Upset by what they see—and upset by the fact that they are upset—liberals then fall back on legalism — the belief that laws can save us from politics. They turn to laws of trespass and incitement, hoping to find a loophole to solve the crisis. 

But I want to argue that the real crisis runs deeper, for everyone. Law—whether it’s a question of how we interpret the First Amendment or something else—will only work if Americans are honest about its purposes and its limits.  

The realignment on free speech at this moment is not just a reflection of some newfound hypocrisy. No age or movement has a monopoly on that vice. Rather, the flip-flopped positions of conservatives and progressives, and the deep ambivalence of liberals, stem from the fact that we have entered an era in which Americans have not yet figured out how we want universities to balance equal protection and free expression.  

Equal protection in this context means the right to live and learn free of bias and discrimination. Free expression in this context means the right to voice controversial, even offensive ideas. Only one of those principles is a legal right, codified in Title VI of the 1964 Civil Rights Act; the other remains a powerful but non-legal norm. Equal protection is what the law says universities owe their students; free expression is what universities promise them as a communal ideal. When the two clash, as they do for everyone involved in the Israel-Palestine conflict on campus, we need to make hard choices about how to balance these principles. That requires honesty and compromise. Instead, we are arguing over caricatures of each one of them. 

We hear often that universities are trampling on the First Amendment. Yet student speech is actually not automatically protected by law (though public universities are different than privates in this regard). Nor do students possess academic freedom—this is a norm built for faculty, not students. Still, free expression is a core ideal of the modern university. Those who would have administrators shut down offensive speech must define which harm this would address. Is it the threat of imminent violence or the imposition of psychological distress? Both are harms; but they are not identical. When students say that they feel unsafe—and this language is used by students on all sides of this conflict—what precisely do they mean by that? 

Then there is the question of double standards. Both critics and defenders of the protest claim that antisemitism is exceptional when it comes to its treatment. Pro-Israel advocates allege that anti-Jewish speech is not handled in the same way as anti-Black hate. Palestinian advocates often refer cynically to the Palestine exception to free speech. Everyone deserves consistent application of rules and policies. It helps to remember, though, that what happens with Israel/Palestine will have consequences for a whole host of other ripening speech issues on campus. If curbing speech is deemed necessary in the case of anti-Zionism lest it veer into antisemitism, does the same hold true for, say, anti-China protests regarding that country’s brutal policies toward Uighurs that may offend Chinese students? Or anti-Hindutva (Hindu nationalism) protests over India’s policies toward Muslims and Sikhs that may distress Hindu students?  

When it comes to equal protection, our debates devolve from confusion to dishonesty. A successful Title VI legal complaint of intimidation, harassment, or discrimination requires a school to take tangible steps to change their policies and remediate harm through educational initiatives, personnel sensitivity training, and equity-based accommodations. Those policies all fall under the rubric of DEI (Diversity/Equity/Inclusion) initiatives. Ironically, critics who demand equal protection for Jewish students frequently ascribe the problem of antisemitism back to those DEI programs and the supposedly pernicious political ideology it incarnates. It is easy to point out DEI’s flaws. Yet it remains the chief policy instrument for providing remedies to discrimination on campus. Instead of facile calls to dismantle DEI, we might ask, what does a better version of it look like? 

As a society, we should be debating these questions. Instead, we find ourselves seeking refuge in myths. There are no authentic protestors moved by Palestinian suffering, we hear, only outsider agitators and undergraduate dupes. The fault lies with DEI officials, or college presidents, or opportunistic conservative politicians. Let universities simply enforce their speech policies consistently, and open-mindedness and tolerance will surely prevail.  

But honesty demands that we relinquish these myths. To ensure a school is legally free of antisemitism or any other bias requires university administrators to monitor, and, in some cases, to curb speech. In truth, the right to free speech always involves some kind of government regulation. It is the state that creates the right of free speech. And it is the state that both protects and sometimes infringes upon the right of free speech in the name of safety or equality.  

The question, therefore, is not whether speech can or should be regulated but how, where, and when, and which tradeoffs we will accept in order to balance expressive freedom and collective equality. 

If there is one final lesson that the past six months have taught us about campus free speech, it is that the university is ultimately a part of society. Politics and posturing occur there alongside genuine humanism and open inquiry. Hatred and compassion coexist. Social media democratizes opinion, while eviscerating nuance. As in society at large, so, too, there is no retreat on campus from the hard questions about freedom and equality. Only when we acknowledge that truth about free speech can we begin a more honest conversation about its future. 

Join our email list


The End of Policy Substance in Israel Politics