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The Israel-Hamas war has brought the long-simmering debates over free speech on college campuses to a boiling point.

If school leaders released statements, they were criticized for not denouncing Hamas and antisemitism or for ignoring the Palestinian plight. On campus, both Jewish and Palestinian students say they arent getting support from administrators and staff. Campus protests have put pressure on school leaders to choose a side or curb student speech and behavior.

Emotions and fears are running high: Jewish students and student groups say they are fearful of antisemitism on campus. Palestinian students say they are facing Islamophobia and racism. Students who signed petitions that critics say supported Hamas in the wake of its October 7 attack are losing career opportunities or have been publicly named and investigated.

The leading group advocating for free speech on campus argues that the problem is not that universities are doing too little to stifle hateful speech; its that they have already done too much. Amid the major social and political catastrophes of the past decade, higher education institutions have strayed away from their mission: to foster dialogue and the flow of different ideas, said Alex Morey, the director of the campus rights advocacy program at the Foundation for Individual Rights and Expression (FIRE).

Sometimes the free flow of dialogue can be uncomfortable, and FIRE often defends statements and individuals who are unpopular. Even as people on and off campus fear that heated rhetoric will lead to an increase in Islamophobic or antisemitic violence, Morey argues colleges should not stop their students from making statements that many find deeply upsetting or even dangerous. Instead, she said, colleges should focus on creating a safe environment where even jarring, hurtful, or racist notions can be discussed and debated.

Its a lot to grapple with, and I talked to Morey about it all: school statements, student protests, faculty speech, whether words are violence, and why certain students are under more scrutiny than others. Our conversation has been edited for length and clarity.

Whats your broad assessment of how the conflict in the Middle East is playing out on college campuses?

The zoom-out assessment is that its a really divisive topic. Its a big controversy, whether you are looking at it on the ground in the Middle East, or if you are on a college campus. Wherever people are talking about whats going on with Israelis and Palestinians, this is a hot-button issue.

Lots of people want to express their opinions about it, so its no surprise that on college campuses, we are seeing the same level of passion from students and faculty as were seeing from anybody who is confronting this long-running and really intractable conflict.

That said, FIRE is always urging colleges and universities and members of those communities, whether youre a student or the president or a faculty member, to recognize the universitys very special role when it comes to confronting these problems. [Universities] are not corporations. [School leaders] are not politicians.

We have found in recent years that universities are acting a lot more like corporations when it comes to making statements about big political and social issues. Theyre worrying about, Well, how does this look for the brand? or If theres controversy on campus, is that going to make legislators mad at us and take away our funding? The focus has been removed from what we think is the core mission of the university, which is to foster debate and discussion. It is to welcome not just a diversity of students and faculty and help them thrive, but to also embrace a diversity of views. The college campus is the place to have peoples different authentic views come together, where we can have discussions in a scholarly and civil way. That isnt a top priority for many universities, it seems, and that is a big mistake.

The Israel-Hamas conversation has seemed to wake administrators up, at least a bit, to the realization that if they continue their practice of taking firm sides on political and social issues, they will, repeatedly, arrive at places like this, where there are conflicts on which there is no right side.

Youre saying universities should not have come out to comment on Hamass attack on Israel or on Israels continued bombardment of Gaza. But we are now past that point at many schools, as you acknowledged.

Now some students and faculty members are facing consequences as part of this environment you describe in which universities are trying to be arbiters of right and wrong when it comes to speech and actions. In light of this, what are the foundational speech protections that students, faculty, and school leaders have on campus for speaking out on this issue?

It depends on whether or not youre on a public or private campus. Public campuses have to follow the First Amendment, which means students and faculty have broad First Amendment rights. Students can express their views on anything on campus. They can protest. They can hand out leaflets, or, in line with the universitys posting policies, hang up posters. They have broad First Amendment rights that would apply to anyone in society when theyre speaking off campus in their free time and in many of the areas on campus. There are exceptions for in the classroom. They cant get up in the middle of class and be screaming or something because faculty also have First Amendment rights, including the right to academic freedom, which entails, among other things, the right for them to control their classroom.

Faculty also have strong academic freedom rights, which is like a corollary of the First Amendment, to make extramural commentary. That means that on their own time they can talk about things that are related to issues of public concern. So something as politically dicey as whats happening in the Middle East is an incredibly important issue of public concern.

Administrators actually have fewer rights. Of course they have their rights as citizens when theyre off the clock, but because they are effectively employees of the university, their speech can be restricted in ways that we dont see for faculty and students, who have much broader rights.

Private campuses that make free speech and academic freedom promises in their mission statements, which is most of them, have to keep those promises. These promises all basically say our students and faculty have free speech rights commensurate with the First Amendment.

And how does counterspeech fit into that framework of protections?

Counterspeech is super important. The vision of the First Amendment is not just that people are allowed to say anything without the government suppressing it. Its this idea that if we all talk together, we will have better outcomes for society. When somebody raises an idea that might be unpopular or wrongheaded or offensive, the idea is that other people will then lend their voices through counterspeech and say, I disagree with that idea and heres why. Heres why my idea is better.

That gets complicated in practice.

There are some nuances that are really important, that illustrate how universities could be doing a better job of explaining this to students and faculty and deans who are in charge of making sure different speaking events and protests go off without a hitch.

One is that when students are speaking in open outdoor areas of campus, areas that function like a public square, if a heated back-and-forth occurs between students, thats protected speech. Weve been seeing this a lot in recent weeks, where there might be a pro-Israel protest on the quad and a pro-Palestinian student comes up and says, You all are a bunch of jerks! This is all protected as long as there is no physical altercation or true threat, which has a specific legal definition.

Then another situation we often see these issues raised is when it comes to invited speakers or situations where a student group has reserved a space for a speaker or their members to speak. Theres been a lot of confusion about, Well, cant a protest group come marching through this speech and shout it down? Isnt that our free speech? The Supreme Court has firmly said no, thats called a hecklers veto. It means if there is a particular forum that has been reserved for a particular type of speech, those students who are putting on that speaker or who are speaking, have the right to control that forum until theyre done speaking. What those protesters can do instead of censoring the speech is have space nearby outside the venue where they can protest contemporaneously.

Universities should support that kind of exchange and teach students its not actually free speech to shout down the speaker. They should facilitate that exchange of ideas. Relatedly, actions like ripping down posters also typically are not protected expression. Blocking access to or egress from buildings, trespassing, incitement where youre actively, intentionally encouraging someone to go commit a crime imminently and its likely that they will do it those things are not protected. Most of what we see on campus is just students and some of the faculty having really heated debates and expressing opinions that a lot of people find hateful and offensive and that, without more, is all protected.

But I feel like since 2020, a facet of our society now and this especially plays out on college campuses is that students look to administrators and leaders messages to feel safe. Theres the example of how after 9/11, hate crimes against Muslims decreased after President Bush said that America will not tolerate Islamophobia. I spoke to the folks at Hillel International who told me Jewish students on campus dont feel safe because they dont believe they have the support of school leadership. A lawyer at Palestine Legal told me Muslim students dont feel supported right now. And when they say support, its not necessarily like, are there more officers on campus to protect our safety, but its like, what is the administration communicating in its statement that can help us feel safe?

This is probably the most important change that we need to see on campuses if we are going to have the kind of speech and debate climate thats ideal in these university spaces.

Theres been a lot of research about how this generation of students is dealing with more mental health issues than in other generations. One reason is these students have had very intensive parenting that didnt expose them to views or ideas that could upset them. Now when they get to campus, they have similar expectations, that they can go to someone to say, Fix this for me, Im upset. But universities really need to help teach them that words and ideas are incredibly powerful, but so are they. They can confront a lot of these ideas with confidence.

They need the skills to understand, Why is it important to listen to people that I might not agree with? What are the contours of listening to an idea that I disagree with? I am actually strong enough to be able to handle that, and, in fact, its so much better than when these ideas have to be pushed underground and they fester, that they turn into actual violence.

There are benefits of genuinely confronting these ideas. We need to help students learn that while words and ideas are incredibly powerful, not only are they not violence, but, in fact, theyre the opposite of violence. And they are the best way that we, as humans, have ever devised to work out our problems without killing each other or without jailing each other.

Is all speech being treated the same right now? Are students who are speaking out in support of Israel being treated the same as students who speak out for Palestinian rights?

It depends on who you ask. Thats the heart of all of the discussion of hate speech right now. Like, if you say, Free Palestine, then you must mean that youre pro-Hamas. Or if you say, release the hostages, then that must mean you are cool with genocide in Gaza. Of course, its much more nuanced than that. A lot of people are justifying not wanting to talk to each other because they think these are just war criminals on both sides.

From a First Amendment perspective, there should be no value judgment on speech other than is it protected or not. And when were asking that question, were asking, should the government or the institution that promises First Amendment commitments, should we put them in charge of deciding which is the appropriate view to have on Israel-Palestine?

We think the key to navigating these incredibly divisive and polarized times that are now in front of us, unlike any time in the past, is to have universities not take a stance on these issues for exactly the reason you raise. At the University of Arizona recently, the president came out saying, We condemn Hamas. He also basically said, Im really nervous about the [Students for Justice in Palestine] chapter on our campus speaking up about Palestine and liberation, theyre going to do a rally on our campus and they have the right to do that, but I dont really like it. It doesnt align with our values.

Then SJP immediately canceled the rally and said they didnt feel safe doing it on campus. That was a grave situation in which nobodys First Amendment rights were violated since everybody who was speaking and counterspeaking had the right to do that. But when that speech is coming from the institution itself, an institution that is supposed to embrace all views, the effect is that some views can be marginalized.

Were seeing many situations of students being investigated, like Ryna Workman, who lost her big law job for saying Israel bears responsibility for the loss of life in Israel. NYU said they are investigating her. We are definitely seeing the pro-Palestinian type of speech being less popular writ large on many campuses. One thing universities can do to signal that they are not elevating some protected speech over other protected speech is for the institution itself to not start from a place of bias.

You mention that students who are articulating pro-Palestinian views are being disproportionately challenged on their speech. Why do you think that is?

Its probably because the pro-Palestinian students do feel more like the minority on most campuses, and because often they are. And so they feel less empowered and less supported by the university. If universities had come out and said, We stand with the people of Gaza. End genocide now, it might be a totally different situation where Palestinian students were feeling like their speech is the one that is important on campus.

And then in broader society, were not seeing employers take peoples jobs because they condemned Hamas. The people that stand with Gaza, theyre the ones losing their jobs. The US government is fully behind Israel. Beyond campus, theres this sense that most people are generally pro-Israel at this moment. So students who are pro-Palestine probably feel like their speech is unpopular and were seeing that play out on campuses. I dont think weve yet had a situation where a pro-Israel student or professor is facing some kind of censorship attempt from the university. I could be mistaken but theres lots coming from the other direction.

Whats your assessment of how campus protests have played out? They appear to have gotten heated, with clashes between dueling protests. Jewish students are fearful that some pro-Palestine rallies have been antisemitic. There have been images of students with signs that say keep the world clean accompanied by an image of the Israeli flag in the trash. Palestinian students and advocates report being shut down.

Its all protected, as long as thats all there is. As long as there is no true threat.

What is a true threat in this context?

A true threat is a serious expression of an intent to commit unlawful violence thats targeted toward a person or a specific group of people, like Those people over there, were going to do something bad to them. Its a very high bar, so even stuff that people find very offensive or wrongheaded, like the Star of David in the trash can, is all protected unless there is some kind of substantial step that moves it toward meeting that true threat threshold.

And how are incitement and discriminatory harassment different?

Incitement is a statement in which the speaker is asking people to commit an unlawful act of violence. Again, it has to be targeted in the way that a true threat would need to be targeted, and it also has to be likely to occur.

A lot of this generalized, very heated rhetoric around Israel and Palestine is not going to meet that high bar. Its the same with discriminatory harassment. In higher ed, discriminatory harassment is only those unwelcome statements that are so severe, pervasive, and objectively offensive. It is typically repetitive, targeted conduct or speech that is so serious that it deprives the victim of their ability to get an education at the university. So just walking around campus seeing a poster [with hateful language], thats going to be upsetting. Thats going to make you want to speak out and counter that, but you can just walk away and still go to class.

Of course, universities can speak to campus communities and say, Look, to the extent that our Jewish or Palestinian students are feeling unsupported or are worried that some of this speech might devolve into violence, here are the steps were taking. And those steps can include ramping up security, providing the contact information for campus safety, and providing mental health resources, other health resources.

Universities can do what they can to make sure that they are creating a campus thats not a tinderbox for violence. But beyond that, it is very important under the First Amendment that colleges and universities not try to sanitize or civilize a lot of this speech that is heated and passionate for a reason.

I am still trying to understand how really antisemitic or racist or Islamophobic/anti-Palestinian statements are akin to saying Fuck the draft, particularly in this climate.

Its a tough one. But Ive got the answer for you. A lot of people are saying hate speech isnt protected speech. But hate speech is protected speech because there is no legal definition of hate speech.

Israel thinks the Palestinians are engaging in hate speech and the Palestinians think Israel is engaging in hate speech. And whos right? We cant know. Thats sort of the idea thats embraced by the First Amendment, that one mans vulgarity is another mans lyric.

Another example is stomping on the American flag. Some people think that we can all agree that stomping on the American flag is unpatriotic and hateful. But you could argue that the person stomping on the American flag loves America too, but maybe they dont love how its being run right now and its their First Amendment right to raise those concerns.

The key Supreme Court case that talks about hate speech and why it has to be protected is Snyder v. Phelps, which is the Westboro Baptist Church case in which the church was outside military funerals with signs and shirts that said, Thank God for dead soldiers and Fag troops. The parents of some of these soldiers sued the church since they believed that the speech was so disgusting. The families believed that that kind of hate speech wasnt protected.

But the Supreme Court unanimously said the churchs speech is protected. Its because speech is so powerful. It can make people very upset. It can prompt people to do things and make change and raise their own voices in protest. In the US, we have a unique commitment to leaving debate as wide open as possible so that we dont stifle debate.

Are there international comparisons that help us illustrate why America is so committed to protecting speech, even if its hate speech?

There have been attempts in other countries, [in] Europe, France and Germany, in particular, to pass antisemitism laws that make it illegal to say stuff like I hate the Jews. But there are a couple of interesting things about those antisemitism laws, about how they dont work.

One, we have seen uneven implementation of those laws. For example, when the Charlie Hebdo newsroom was shot up because they were making fun of the Prophet Muhammad, a lot of Muslims were saying theyve been talking about issues that are important in the Muslim community but were being targeted under the antisemitism law. There have been Muslims put in jail for violating the antisemitism law when they were making statements like, Maybe I can see why some of these Muslims are acting in violent ways. Muslims have been jailed in France for that, but the Charlie Hebdo staff were making fun of Muslims and it was no big deal.

Separately, Germany has some of the strictest antisemitism laws, where you cant make certain statements about Jews. And theyve also got the biggest underground growing ultra-right Nazi crisis that German authorities cant keep track of in the world because we dont know where these Nazis are. They cant say this stuff, but they still hold those views.

Theres the sense right now that this kind of hate speech is widespread, that students all across America are engaging in some kind of charged speech that is disrupting the ability of campuses to function right now. And the war in the Middle East is only intensifying. Is it the case that speech is getting worse on campuses because it is going unchecked?

I think, broadly, those kinds of very extreme statements are not rampant on college campuses. I know we have seen an uptick in this really heated rhetoric in the last few weeks. But a lot of the pushback that I get during this free speech work is like, well, if we allow speech to be that free, then KKK groups are going to be popping up on campuses everywhere. That is not happening. Most people are decent people who want to have these conversations, so universities should be fostering them rather than taking action to silence students.

Can you talk about why you believe it feels so charged to call someone antisemitic right now, or to call someone a Zionist? Students are saying theyre afraid of being called one or the other, or are being called terrorists or terrorist sympathizers. Are these terms being weaponized in some way and why?

The zeitgeist for many people is to take a single view that someone might have and extrapolate that to an extreme, and say, Well, if you believe this one thing then you must believe all these other things.

People are seeing that happening, and theyre very worried about being misunderstood. I dont think theres a lot of recognition in the world right now that people are more than just one particular view. Were nuanced, complicated creatures. Were afraid of whats happening in our world right now and we want to be in our little boxes and look for any signal from other groups that they might be a danger to us.

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