Colleges are overlooking a simple solution to the Gaza protests: Free speech zones 

At the core of every free speech demand is the insistence that others will listen.  

Recent free speech actions on elite American university campuses are making it impossible not to listen, and escalating threats of violence have become a widespread and worrisome element. The subject of this speech concerns a list of demands, including a ceasefire in the Israel-Gaza conflict and divestment from Israel, accompanied by shouted accusations of genocide or anti-Zionist and antisemitic taunts. Attempts to find a resolution have been rejected. The cycle of confrontation and reply in the past few days has been months in the making, and the pedagogy at elite universities has been implicated as a root cause.  

It is understood that the First Amendment never instantiated an unfettered right to speech at all times and in all circumstances. Speech is prohibited under well-known categories that include defamation, fraud, obscenity, child pornography, threats and incitement.

Nevertheless, it is a hard needle to thread, as we allow, for example, the burning of a U.S. flag as a form of speech. In that case, the action is violent, but it is not associated with specific incitement. The right to burn a U.S. flag was upheld in Texas v. Johnson (1989); the court held that flag burning was a form of symbolic speech and that although an action might be very offensive to some, our outrage alone is not sufficient to ban speech.   

Because private universities are not government entities, they are not strictly bound by the First Amendment. Nevertheless, the broad practice among most private universities is to support and encourage free speech. Truly private universities may be extremely rare, however, as most private universities receive federal money through tuition obtained by a federal loan program. Practically, private universities don’t need the cudgel of the federal government to support free speech, but they also need not seek a form of speech more permissive than the federal government would tolerate. 

Free speech advocates all struggle with the problem of demanding a right to speak absent a duty to listen. According to the counter-speech doctrine, the best way to respond to negative speech is to counter with positive speech. This model assumes that agnostic listeners will naturally embrace positive speech and reject negative speech. But in the age of fake news, the truthfulness of any speech can be very difficult to parse. The explosion of social media, and the capacity to block the speech that one does not abide, results in perpetual conflict. No one learns. No one wins.  

A legal concept known as the “captive audience doctrine” may be the most practical solution.  

In the law, the captive audience doctrine seeks to relieve recipients from being held captive by unwanted speech. Free speech jurisprudence is incomplete when it fails to recognize, that in addition to a right to listen, a right against compelled listening is required. In constitutional law, the doctrine applies when an individual cannot, as a practical matter, escape intrusive speech. In labor law, the doctrine prohibits either party to a union election from making a speech on company time to a mass assembly of employees within 24 hours of an election.  

How can a university both promote and permit speech while upholding the captive audience doctrine? As a model, consider Speakers Corner in Hyde Park in London.  

The code for Speakers’ Corner permits speech, provided it is lawful, does not use offensive language, is respectful of alternative opinions, and shows courtesy to other speakers and members of the public. Hyde Park is 359 acres and Speakers’ Corner occupies, as the name suggests, a small corner. In this way, park visitors can enjoy many parts of the park unimpacted by Speakers’ Corner actions. A university could designate a part of the campus as such a “speakers’ corner.” Such a location should be reasonably accessible and accommodating of those who wish to listen while allowing those who do not wish to listen to be able to enjoy their university experience.  

Speakers’ Corner can be a beacon of new ideas and provide for the exchange of ideas. Naturally, other rules can be put in place including limits on the time of day (not after dark), not during examination periods, no camping, no obstructing other speakers, and no speakers outside of the university members. Mostly, the idea would be to permit, as opposed to restrict, speech. Once offered, those university members demanding the opportunity to speak can prove the sincerity of such a demand. A refusal by a person or group to be bound by the very reasonable rules would reveal an insincere and potentially dangerous and obstructive intent. A university would be therefore within its legal right to block or remove such activity from the campus and community. 

While the use of police to disperse a claimed speech right has not been universally effective in quieting an angry crowd, when danger to others supervenes, the university must restore safety — in some cases, it will be necessary to use force. The aftermath of arrest and removal will be critical. Permanent bans or even highly punitive bans are antithetical to the survival of embedded communities like a university. Instead, implement punishment followed by real opportunities for reconciliation and repatriation.  

Universities need to rapidly convene interested parties to establish free speech zones, lawfully tempered by a captive audience doctrine. In this way, conversations about speech content can be set aside. The right to tempered speech is a cornerstone of our civil society, but in this untethered moment, the cacophony of words has become more gasoline for the fire.   

Joel Zivot, MD, MA, JM, is associate professor of Anesthesiology and Surgery, Emory School of Medicine; former adjunct professor at the Emory School of Law; and senior fellow in the Emory Center for Ethics.