Florida Gov. Ron DeSantis’s administration has ordered state universities to ban a pro-Palestinian student organization, Students for Justice in Palestine (SJP). The state has denounced SJP as supporting a “terrorist organization” after the massacre of Israelis by Hamas. I have previously written how Hamas is morally and legally a terrorist organization. However, this move would, in my view, violate the First Amendment and chill the exercise of free speech in higher education.
State university system Chancellor Ray Rodrigues wrote to university presidents Tuesday directing them to disband chapters of SJP. He quoted the national group’s declaration that “Palestinian students in exile are PART of this movement, not in solidarity with this movement.”
That is a rather thin rationale for declaring that the student groups are now aiders and abetters of terrorism. Nevertheless, Rodrigues declared “it is a felony under Florida law to ‘knowingly provide material support … to a designated foreign terrorist organization.’”
Students for Justice in Palestine has been on U.S. campuses for decades with more than 200 chapters across the United States. The Supreme Court has repeatedly struck down such content-based bans and has been particularly protective of free speech in higher education. In 1943, in the midst of World War II, Supreme Court Justice Robert Jackson wrote schools “educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
The Supreme Court has protected speech that is vile and prejudicial. That included the racist and anti-Semitic speech of a Catholic priest in Terminiello v. City of Chicago, 337 U.S. 1 (1949). In that case, Justice William O. Douglas wrote:
The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute… is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. …There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.
I strongly disagree with many of the protests being held on campuses, including a deeply disturbing incident at George Washington University this week praising “the martyrs” in the Hamas attack. Our Jewish students need to feel safe on our campuses — a concern magnified this week by the image of Jewish students locked in a library for their own protection in New York.
However, the solution is not the denial of free speech on our campuses. Higher education demands a protective space for a diversity of viewpoints. The solution to bad speech remains better speech, not censorship or criminalization of speech.