Free speech rights weaponized to silence students on US campuses after Oct. 7

NEW YORK — After Princeton University student Alexandra Orbuch reported on an anti-Israel rally last semester, Orbuch, the editor of the conservative campus newspaper The Princeton Tory, received one thing she didn’t expect — a no-contact order.

Typically granted in the case of alleged sexual harassment or alleged assault, a no-contact order (NCO) acts as a type of restraining order. But in this case, the school issued one after pro-Palestinian students reportedly complained about the questions Orbuch asked during her reporting.

“Princeton has now demonstrated on multiple occasions that if journalists with heterodox views attempt to cover anti-Israel rallies, the administration will grant no-contact orders against them,” said Orbuch in an email to The Times of Israel. “The effect is that reporters are not only prevented from reporting but are effectively banned from certain spaces on campus, under the threat of punishments up to expulsion.”

Although no-contact orders can protect students from harassment and other misconduct, Princeton’s policy previously permitted any student to request a no-contact order against another student without alleging misconduct. As a result, several student journalists received no-contact-type orders in apparent retaliation for their reporting without any due process from Princeton, according to the Foundation for Individual Rights and Expression (FIRE).

While Princeton has since revised its policy — due in large part to outside pressure from the Anti-Defamation League (ADL) and FIRE — it stands as an example of how free speech has been weaponized on American campuses since the October 7 Hamas onslaught. As the Israel-Hamas war has entered its fifth month with no sign that antisemitic and anti-Israel sentiment on campuses is diminishing, it might also offer an opportunity for colleges and universities to review campus speech codes.

“It’s a good time for schools to reexamine policies and rules for misconduct to see that they’re actually applying them in an even-handed manner,” said FIRE director of policy Laura Beltz. “There does seem to be some confusion about civil disobedience and so it’s a good opportunity to teach students rights.”

Indeed, FIRE claims that restrictions on student speech worsened slightly in 2023, with 20 percent of schools earning the organization’s “red light” rating for having at least one clear and substantial restriction on free speech. About 65% earned a “yellow light” rating for having restrictions that could easily be used to restrict free speech, while 13% received a “green light” for maintaining policies that don’t seriously trample on free speech, according to FIRE’s 2024 college free speech rankings. (A fourth rating, labeled “warning,” is assigned to institutions that overtly prioritize other values over free speech, and these schools have been excluded from the above survey.)

Orbuch wasn’t the only Princeton student journalist targeted by students taking advantage of the former policy.

Earlier this academic year another Jewish reporter for The Tory, Danielle Shapiro, was hit with an NCO after covering a public protest against the Israel Summer Programs Fair that was organized by the Princeton Committee on Palestine (PCP). When Shapiro followed up with a source — a fellow student and PCP leader — the source reportedly disliked the ensuing coverage and requested a no-contact order, which Princeton immediately granted, according to FIRE.

Since revising its policy, Princeton has lifted the orders against the students.

“I commend Princeton for quickly addressing this and making substantial changes to its NCO policy because to use the NCO for simply reporting on events is censorship. In this case, it hurt Jewish students — but it hurts all students,” said James Pasch, the ADL’s senior director of national litigation.

Free speech flash points

Many campuses allow students to paint designated boulders or walls with political and social messages to promote the free exchange of ideas and opinions. Often known as a “spirit rock,” these too have become free speech flash points.

The administration of the University of Connecticut in Storrs considered removing its rocks after pro-Israel and pro-Palestinian students began painting it with opposing — and at times inflammatory — messages.

On October 8, the day after the Hamas-led massacre that saw 1,200 people brutally murdered in southern Israel and another 253 abducted to the Gaza Strip, Jewish students painted the spirit rock in blue and white — the colors of the Israeli flag — and wrote a message of peace in Hebrew, English, and Arabic. By the next morning, pro-Palestinian students had painted it over in the colors of the Palestinian flag along with the words: “No Justice, No Peace.”

“After October 7, there was a stretch of time in which it became a venue for persistent conflict, which is the opposite of its purpose to build and support the campus community,” said University of Connecticut spokesperson Stephanie Reitz. “[We] ultimately decided against making any significant changes to the rock at this time, including retiring or moving it.”

That’s not the case at the University of Texas at Dallas. There, administration officials decided the messages painted on the spirit rocks were too inflammatory, and so they replaced the rocks with trees.

While that might calm campus strife, it’s the wrong move, Beltz said, adding that since the university allows speech on other social issues, it could be considered viewpoint discrimination — a type of free-speech restriction that singles out a particular perspective while allowing others to propagate unhindered.

Meanwhile, Dr. Julia Schaletzky, the executive director of the Center of Emerging and Neglected Diseases and professional faculty at the Haas School of Business at the University of California, Berkeley, said the campus has become “censorious” and “hostile” since October 7.

“The lab got plastered with pro-Palestinian posters right away after October 7. It created a hostile workplace for Jewish students. Imagine if posters of pin-ups and playmates were put up? That would be considered a hostile workplace for women, but I was told it’s free speech,” Schaletzky said.

As at Berkeley, antisemitic posters continue to pop up at Columbia University in New York City.

In the past few weeks, posters depicting a skunk wrapped in an Israeli flag with the message, “Beware! Skunk on Campus,” have been pinned to bulletin boards in several academic buildings without permission.

The poster reportedly refers to a January 19 incident in which two people allegedly sprayed pro-Palestinian demonstrators with a foul-smelling substance.

Columbia University’s handling of antisemitism is now, as of this week, the subject of an official Congressional committee investigation.

Limits to free expression

While offensive speech and protests are constitutionally protected, there are limits to that expression, the ADL’s Pasch said.

That being the case, the ADL created a student code of conduct that schools could use as a template when designing or revising speech codes.

According to the code, universities and colleges should make clear that students cannot “engage in harassment that creates a hostile environment.” Additionally, members of a campus community cannot use any images or language that contain “true threats or are made with the malicious intention to cause another person or group to fear for their physical safety.”

That resonates with Julia Jassey, the CEO, director and founder of the advocacy organization Jewish on Campus.

“We’ve also seen protests and chants that cross the line from political speech to harassment and intimidation. Calling October 7 ‘creative resistance justified’ crosses the line. It’s imperative that Jewish students are protected on campus, that they have equal access to their campus like everyone else,” Jassey said.

Ensuring that students have equal access to their campus is partly why American University, in Washington, DC, banned indoor protests.

In a campus-wide January 25 letter, university president Sylvia Burwell said the decision came because “recent events and incidents on campus have made Jewish students feel unsafe and unwelcome.” Several Jewish students filed a complaint with the US Department of Education Office of Civil Rights in January over antisemitic vandalism and harassment that occurred during the fall semester.

Angered, the university’s chapter of the American Association of University Professors issued a letter on January 29 criticizing Burwell for excluding the faculty from formulating the policy and because, according to the letter, the policy “explicitly targets — but does not define — student protest. Because it is vague, based on subjective or undefined terms, and gives administrators the power to punish students and groups whom they determine are not ‘welcoming,’ the policy will have the effect of suppressing and chilling expression throughout our community.”

However, the ban on indoor protests is part of a revised policy on free expression that grew from a two-year-long effort, said Matthew Bennett, vice president and chief communications officer at American University. Faculty and staff were involved in drafting the policy and it was launched earlier this month.

Moreover, the revised policy doesn’t eliminate students’ right to dissent and demonstrate, said Bennett. It does, however, stipulate that students don’t have the right to shut down the speech of others, also known as a “heckler’s veto.”

“The policy is focused on disruption and in keeping students safe. We will always be looking at whether a protest disrupts the educational mission of the university,” Bennett said.

Nevertheless, FIRE’s Beltz said the policy would be strengthened if it included more specific language.

“Limiting a disruptive protest, one where students march through a library banging on drums so other students can’t study, would be reasonable. Banning a non-disruptive protest, where students hold up a sign, wear a t-shirt, or turn their back on a speaker, is not reasonable. But shouting preventing a person from speaking or an event from taking place is not okay,” Beltz said.

As antisemitism continues to spike — a November 2023 Hillel International survey found that 73% of Jewish college students and 44% of non-Jewish students have experienced or witnessed antisemitism so far this academic year — campus administrators need to ensure Jewish students enjoy equal access to their campuses as they balance free speech concerns.

“All college campuses have the ability to enforce time, place, and manner of speech in a way that respects free speech and guarantees the right of Jewish students to go home, to go to class, to study in the library free of harassment. All students deserve that right,” Pasch said.