Pro-Palestinian protesters have taken over a building at Columbia University, marking a significant escalation for nationwide demonstrations that experts say have pressed and sometimes strayed from what is legally permissible.
While protesting is a sacred right in the U.S. and is all the more cherished on college campuses, hundreds of students have been arrested in multiple states as administrators and elected officials try to enforce what they see as essential boundaries.
Legal advocates say activists must understand the right to protest in different contexts, such as if they are at a private or public school, whether they are protesting indoors or outdoors and the “when and where” rules colleges can place on demonstrations.
Public vs. private universities
Public and private institutions are not legally required to treat protesting the same because only public schools are bound by First Amendment requirements.
“If we were talking about a state university, for example, it would be significantly constrained by the First Amendment, and that would substantially limit what they can and can’t do,” said Frederick Schauer, a law professor at the University of Virginia.
“On the other hand, nominally private institutions, including Harvard and [the Massachusetts Institute of Technology], and the like, are not officially constrained by the First Amendment, although for many years, most of them, maybe even all of the prominent ones, have said that they will constrain themselves by standards that are roughly equivalent to the First Amendment,” Schauer said.
Private schools have thus been able to take additional actions to curb protests, such as shutting down outdoor parts of their campuses to the public. Most private institutions have their own internal structures in which they agree to uphold the principles of the First Amendment and free speech protections, Jared Carter, an assistant professor at Vermont Law and Graduate School, noted.
Harvard has made it so only students and those affiliated with the university can make it onto the lawn since they are not a public school.
Indoor vs. outdoor protests
A big factor in deciding if a protest is permissible under school guidelines is if it is interfering with the educational experience of other students, according to experts.
This is why schools, whether public or private, have significantly more power to disperse protests that are indoors.
While most of the pro-Palestinian protests have been marked by outdoor encampments, a new layer was added Tuesday after Columbia students took over Hind’s Hall on campus.
“An autonomous group reclaimed Hind’s Hall, previously known as ‘Hamilton Hall,’ in honor of Hind Rajab, a Gazan martyr murdered at the hands of the genocidal Israeli state at the age of six years old,” Columbia University Apartheid Divest, a coalition of pro-Palestinian student organizations at the school, said in a statement.
The school has threatened to expel the students who have occupied the building, but the New York Police Department has reportedly said it won’t intervene without a request from Columbia or unless there is a true emergency.
Carter told The Hill he believes occupying a campus building is not a form of protected speech under the First Amendment and that students, at least those at private institutions, could face civil or criminal trespassing citations.
While the First Amendment does protect conduct in some circumstances, Carter noted occupying a campus building will likely not “satisfy” those conditions, as such an occupation constitutes “civil disobedience.”
“You’re trespassing on private property; they don’t want you to do it. And as a private institution, they’re going to have a lot of power over that,” he said. “Where the First Amendment comes into play if you have, say, a state school, or you have activities occurring on public property, then you’re going to have First Amendment implications, and any enforcement of that is going to be subject to the First Amendment.”
Why are encampments a sticking point?
Many of the protests at U.S. campuses have turned into encampments where student activists have been staying overnight in large groups.
Zachary Greenberg, a senior program officer for the Foundation for Individual Rights and Expression (FIRE) pointed to the “time, place and manner” restrictions that schools can impose on expressive activity.
“Among the limits universities can impose are reasonable time, place and manner restrictions, and almost all universities impose restrictions on students camping out overnight or installing fixtures on university property,” he said. “These are reasonable because they are designed to prevent disruption and allow the campus to operate efficiently.”
Columbia, where the first major encampment started earlier this month, began suspending students who refused to leave the camp by a deadline on Monday. School officials issued warnings to demonstrators earlier in the day before beginning the suspensions.
“A university can in fact permissibly ban tents and certainly overnight camping as causing concerns that are predicated not on the content of the message, but simply content-neutral considerations,” said Daniel Conkle, a professor of constitutional law at Indiana University.
Are schools required to bring in police?
While schools may be on legally solid ground to bring in police to break up protests, the question about whether it is the right move is up for debate.
“So that the mere fact that a university may have a valid rule, let’s say, against the erection [of an encampment], tenants are against overnight camping, that doesn’t necessarily compel the university to bring in the police to tear down the tents [and] arrest the demonstrators,” Conkle said.
Schools including Columbia initially brought in the police and arrested dozens of students when the encampment first began before pulling back and attempting to negotiate with the protesters.
Other schools such as the University of Texas at Austin jumped right into arrests last week after students walked out of their classes, drawing criticism that officials including Texas Gov. Greg Abbott (R) overreacted to peaceful demonstrations.
While more than 50 people were arrested, Travis County Attorney Delia Garza said her office would not go forward with charges due to a lack of probable cause.
Where does the line get drawn between free speech and harassment?
While many of the protests have been reported to be peaceful, concerns have been raised over the proliferation of some antisemitic content and the safety of Jewish students on campus.
In turn, questions have been raised about which speech is protected by the First Amendment, and which enters the territory of harassment.
“The First Amendment protects offensive, ugly, even quote-unquote ‘hate speech’ … it’s protected,” Carter said. “And that’s why you get ugly speech … things that are offensive, things that are hurtful. And you can’t prohibit that, at least under the current jurisdiction.”
“What you can do is … have anti-harassment laws. You can have laws that prohibit threats so you can’t threaten somebody overtly, put them in fear of physical or bodily harm,” he continued. “And so, there’s criminal statutes that prohibit that, but they have to be narrowly tailored to target really just that true threat language or that harassment.”
Many protest groups have pushed back against the characterization of their demonstrations as violent or antisemitic. Some Jewish students, however, said the protests have prompted antisemitism and made them fearful to be on campus.
On Monday, an anonymous Jewish student at Columbia sued the school, alleging an unsafe environment.
“The encampment has been the center of round-the-clock harassment of Jewish students, who have been punched, shoved, spat upon, blocked from attending classes and moving freely about campus, and targeted by pro-terrorist hate speech –– both verbal and in written form on massive banners and signs –– with statements such as: ‘Death to the Jews’; ‘Long live Hamas’; ‘Globalize the Intifada,'” the lawsuit said.