Reclaiming Free Speech

Jun 27, 2024
Shilpi Agarwal

With graduations behind us, the 2023-2024 academic year has concluded. It started just before the October 7 Hamas attack on Israel, and proceeded during Israel’s months-long military response and the ongoing war in Gaza. The year culminated with nationwide student-led protests and demonstrations, which prompted varying and escalating responses by university administrators. Now is a suitable time to pause and reflect before political protests inevitably begin in the upcoming election season. Since October, this global conflict has fractured this country’s institutions and exposed the fragility of “free speech,” a broad notion that finds specific protection in the First Amendment of the United States Constitution. It now bears emphasizing why free speech is so foundational to our society.

While the specific contours of the First Amendment can be debated and discussed, its core principles remain firm. The First Amendment protects speech irrespective of the content or viewpoint that it conveys; it permits the government to impose reasonable time, place, and manner restrictions on assemblies and protests; and it recognizes differences among “forums” where the speech is offered. This means that things that you can say at a protest or in a public square might be prohibited at a government office building or in a public library. Meanwhile, academic institutions (both public and private), while generally committed to the value of free speech, are simultaneously obligated to create inclusive and healthy academic communities in which all students can opine and thrive.

In recent years, the First Amendment and free speech principles more broadly have been questioned across the political spectrum. This skepticism is understandable, if not always constructively channeled. Private corporations increasingly wield the First Amendment to fight government regulation of any kind. And as technology creates virtual environments characterized by an abundance rather than a scarcity of speech, many have questioned whether the law should—contrary to a utopian ideal of the “marketplace of ideas”— prevent certain things from being said.

Defending the rights of others to say things we find objectionable is critical—it is that same legal foundation that allows us to stand up for what we believe is right in the face of enormous institutional pressures to stay silent. Those of us who seek progress must never take this tool for granted.

Over the last year, this debate has forced academic institutions to reckon with their commitment to free expression in order to navigate strong and opposing reactions to what has happened in the Middle East. Amidst these reactions were rising antisemitism and Islamophobia and, eventually, the eruption of protests, encampments, and other forms of demonstration. Attempts to “manage” these conflicts have catalyzed the ouster of leaders, widespread campus arrests, violence, and graduation ceremony cancellations. Responses to these events and approaches to the proliferation of student-led demonstrations have been dramatically different. Many universities have shown restraint, allowing encampments and other forms of demonstration—even those that violated time, place, and manner restrictions—to breathe, play out, and eventually wrap up in a peaceful manner. Some schools negotiated with the demonstrators, agreeing to some demands, which reflected the power of their voices to influence the administration more directly. By contrast, other institutions moved swiftly to squelch the demonstrations, branding them as dangerous and disruptive. Some even invited outside police onto campus to initiate arrests. Many have advanced policies and procedures that run contrary to the spirit—if not the letter— of the First Amendment.

In California, tensions about free speech have emerged on several fronts. A lawsuit brought by the Brandeis Center for Human Rights under the Law seeks to hold UC Berkeley liable because certain student groups chose to express their pro-Palestinian views on the Israel/Gaza conflict through their group bylaws. In February, protestors opposing an Israeli speaker invited by Jewish student organizations at UC Berkeley allegedly caused physical damage to the school building and the event was canceled. In April, at the private residence of a Berkeley law school professor, a guest spoke out demanding the university cease financial support of Israel’s government. In May, Cal Poly Humboldt administrators called in a large-scale law enforcement response to clear a weeklong occupation of the university administration building. And at UCLA, both the university and law enforcement failed to protect protesters at the encampment from vigilante violence, only to clear the otherwise peaceful encampment the following day.

During the turmoil that has occurred since October 7, it is a slim but nonetheless lustrous silver lining that tens of thousands of Americans are reclaiming their right to free speech and protest. Indeed, the right to speak out against those in power has reemerged as among the most salient tools of this moment. This reclaiming of our right to use our voices in creative and collective ways calls on us to recognize why defending the rights of others to say things we find objectionable is critical—it is that same legal foundation that allows us to stand up for what we believe is right in the face of enormous institutional pressures to stay silent. Those of us who seek progress must never take this tool for granted.

Shilpi Agarwal is the legal director, director of the Legal-Policy Department at the ACLU of Northern California.