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Legal scholars host panel discussing freedom of speech since Oct. 7

Eugene Volokh – the Gary T. Schwartz Distinguished Professor of Law at UCLA – and UCLA law professor Ahilan Arulanantham (left to right) are pictured participating in a panel discussing free speech since Oct. 7. (Anna Dai-Liu/Daily Bruin senior staff)

By Alexandra Crosnoe

April 7, 2024 6:23 p.m.

Correction: The original version of this article incorrectly referred to Claire Finkelstein as the Biddle Professor of Law at the University of Pennsylvania. In fact, she is the Algernon Biddle Professor of Law at the University of Pennsylvania.

This post was updated April 8 at 3:33 p.m.

Legal scholars disagreed Thursday during a panel about the extent of permissible speech on college campuses in the context of the Israel-Hamas war.

During the panel hosted at the UCLA School of Law, participants discussed how their varying interpretations of the First Amendment informed their thoughts on the role of universities in restricting speech. The panel was moderated by UCLA law professor Ahilan Arulanantham.

Richard Sander, a UCLA law professor who organized the event, said Heterodox Academy – an independent nonprofit that seeks to protect open expression on college campuses – provided funds for the event. He added that the event was hosted to create a space for discussing the impact of the attacks on free speech since Oct. 7.

“That conflict has had a big impact on American campuses,” Sander said. “It’s highlighted issues about what sort of speech we should tolerate and should not tolerate, and what’s the distinction between harassment and expression.”

Claire Finkelstein, the Algernon Biddle Professor of Law at the University of Pennsylvania, said during the panel that she believes antisemitic speech does not contribute to the educational purposes of universities and should be restricted. However, Eugene Volokh – the Gary T. Schwartz Distinguished Professor of Law at UCLA – said he thinks the First Amendment should protect all speech, even that which supports violence occurring abroad.

The event began with speeches from panelists.

Finkelstein spoke first, saying since universities restrain, compel and enact viewpoint discrimination in the classroom, they already do not follow the First Amendment. She added that she thinks this means universities cannot cite the First Amendment as a reason to permit antisemitic speech.

Finkelstein – who is also a professor of philosophy at the University of Pennsylvania – also said although a United States Supreme Court case has ruled that students retain their First Amendment rights in school settings, it did not extend those rights to threatening or disruptive actions. She added that Title VI separately protects students against hostile learning environments.

“By pure speech, it meant speech that does not shade over in any respect into conduct or harassment, bullying,” she said. “All those things that go into the creation of what we would call a hostile environment.”

Volokh expressed a diverging view from that of Finkelstein, saying the First Amendment makes it illegal to punish students for what they say. He added that he believes this allows for possibly offensive speech, including examples relating to promoting genocide, bombings, the use of weapons of mass destruction and terror attacks.

“There is no dual standard for speech at universities as opposed to elsewhere,” he said. “First Amendment protections cannot apply with less force in college campuses than in the community at large.”

Volokh said he did believe in a narrow definition of Title VI, which would mean targeted threats, physical conduct or repeated unwanted harassment could still lead to punishment. However, the interpretation of threats should not be overextended, he said.

“Courts have also recognized that when we are talking about traditionally protected areas of speech – political advocacy that some people may find to be racially offensive or religiously offensive or whatever else – that that is something the First Amendment can step in to protect,” Volokh said.

Panelists were then asked about their positions regarding certain symbols and slogans that have been used by protesters on college campuses.

Finkelstein said it is the job of university administrators to make decisions regarding the educational missions of universities, and therefore they should be able to limit on-campus antisemitic speech. Recent examples of expression, such as the hanging of nooses on the campus of Stanford University, should not be permitted, Finkelstein added.

“Do we want our students to be walking by nooses hanging from trees on campus? Does that help to educate our students? Do we want them to be experiencing right-wing hate groups marching through with torches and saying, ‘Jews to the oven’?” she said. “I don’t think that serves the educational mission of a university.”

Finkelstein wrote a December op-ed in the Washington Post claiming the slogan “from the river to the sea” calls for the harassment of Jewish students. However, she said on the panel that she now believes the phrase has multiple interpretations, making it more complicated.

Volokh said the phrase “from the river to the sea” does not contain an explicit threat to students in the United States and thus should not be punished.

In reference to another contentious example of speech on college campuses, Volokh said he believes the slogan “Jews will not replace us” is constitutionally protected speech. However, he said calls for Jewish people to be sent “to the ovens” could be impermissible under the First Amendment because there is an imminent threat of violence.

“It’s important to draw the distinction and not to say this broadly used political slogan is something that, because it could be interpreted by some people as threatening and has been associated in a few situations with some attacks, that can’t be a basis,” he said.

In response to a question from the audience, Finkelstein said that without universities limiting antisemitic speech, Jewish students would not be given the full benefit of an education. However, she added that students should also be less sensitive to speech they disagree with.

“It’s much harder to have the kinds of political debates that both Eugene and I would like to see happening on campus,” she said. “What they do is demonstrate attack and become furious at exposure to people that they robustly disagree with, rather than going to a more engaged setting where they actually have to talk to one another.”

The event was open to all members of the UCLA community. Oscar Delbourgo, a third-year African American studies student, said he enjoyed the event but thought the panel should be diversified because he believed the panelists both had a pro-Israel stance. Neither explicitly shared their political perspective on the war.

David Kamper, a cognitive neuroscience doctoral student, said overall he thought the event tackled an important issue, adding that he hopes that UCLA hosts more panels regarding free speech on college campuses in the future.

“It gets to the real part of the concern,” he said. “How exactly are we supposed to distinguish for what is considered to be reasonable discrimination, such that it impedes upon one’s ability to understand or get an educational experience?”

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Alexandra Crosnoe
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