Student protesters on college campuses frequently invoke the First Amendment to shelter their actions, which often include chanting slogans, occupying buildings and setting up encampments. Legal experts have weighed in on how these activities are protected — or not — under the First Amendment to the U.S. Constitution.
This past spring, student protests brought about by the Israel-Hamas war popped up at many U.S. college campuses. The students protested the war’s rising death toll and called for universities to separate themselves from companies advancing Israel’s military efforts in Gaza.
In June, Louisiana enacted a new law limiting speech on university campuses in response to pro-Palestinian demonstrations at colleges.
Governor Jeff Landry, a Republican, signed Senate Bill 294, which exempts any act that bears a criminal penalty from free-speech protections. Campus free-speech policies no longer defend civil disobedience, says the website Louisiana Illuminator.
“What we need on college campuses is education, not activists,” Republican state Senator Valarie Hodges, who filed the bill, told the Illuminator.
These laws aim to curb civil disobedience and protests, especially those related to the Israel-Hamas conflict.
“We are once again in our history seeing laws that likely target speech, especially speech that some might find objectionable,” Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University, said in an email to VOA.
“We saw it in the Red Scares, during the civil rights movement and during anti-war protests in the 1960s,” he said.
Under the law, “activities in which an individual or group is knowingly being monetarily funded or organized by any individual, corporation, business or organization that has been designated as a foreign terrorist organization or foreign adversary by the United States Department of State” is also barred from protection.
Zach Greenberg of the Foundation for Individual Rights and Expression told VOA that it is important such policies be enforced in “a content viewpoint neutral manner,” meaning that “they can’t be enforced against people differently based on what they say and what they believe.”
Gutterman said the First Amendment “is the protection for citizens to be able to speak, publish, gather and complain about government policy without legal restrictions or punishment for that expression.”
“But, of course, there are lots of specific exemptions, like causing a riot, defaming someone and many others,” he told VOA.
These limitations might take many different forms, such as controlling the amount of noise that people can produce, limiting the number of demonstrators who can occupy a certain space, prohibiting protests in the early morning or late at night, and regulating the size and positioning of signs on public property.
Greenberg said that while the First Amendment generally protects students’ right to protest, this protection has limits. “Speech is protected unless it falls into categories like discriminatory harassment or severe disruption,” he said.
“Encampments, which are often used in protests, are not typically protected and can be regulated through content-neutral time, place and manner restrictions,” he said, adding that this means the First Amendment does not establish a right to occupy a campus as an expression of protest.
The limitations can also vary based on whether the protest is at a public or a private university.
“Public universities are bound by the First Amendment, whereas private universities are only bound by their own policies, which can act as a contractual obligation to provide free speech,” Greenberg said.
Gutterman agreed that private colleges are not bound by the First Amendment in the same way as public colleges but said they still “should operate within the spirit of free speech values and academic freedom.”
He also pointed out that activities such as occupying buildings or setting up encampments generally fall outside First Amendment protections. “You do not have a First Amendment right to stay overnight in a park, and similar restrictions apply on campus,” he said.
Last month, The New York Times reported that when police were called in to break up a student encampment at Columbia University in April, it was the first major detainment of protesters. Since then, more than 3,100 people have been arrested or detained on campuses across the country, the Times reported. Most charges were for trespassing or disturbing the peace, but some people have faced more-serious charges, such as resisting arrest.
As student protests evolve, understanding the balance between free speech rights and university policies remains crucial. Universities are required to navigate these issues to protect free speech while maintaining campus safety and order.
