On Wednesday, Feb. 26, the Alexander Grass Humanities Institute (AGHI) and the Stavros Niarchos Foundation Agora Institute at Hopkins co-hosted an online panel discussion titled “Academic Freedom and the First Amendment.” The event is the second in the AGHI’s Conflict in the Middle East: Contexts and Ramifications series, and considered the tension between free speech protections, student protests and the responsibilities of higher education institutions.
Sarah Wildman, an op-ed page editor at the New York Times, moderated the event. She was joined by guest speakers Michael S. Roth, president of Wesleyan University; Cass R. Sunstein, Robert Walmsley University Professor at Harvard Law School; and David French, a New York Times Opinion columnist.
Wildman opened the panel discussion by quoting a New York Times Opinion article by French from April 2024. In the article, which was published when there were several protests on college campuses against the war in Gaza, French argued that American campuses were confused about the distinctions between free speech, civil disobedience and lawlessness. Wildman then invited French to define the differences between the three subjects.
French defined free speech as the right to express oneself as protected by law or academic freedom policies. He explained that civil disobedience and lawlessness, in contrast, both involve breaking the law to an extent.
“Civil disobedience is when you violate an unjust law and you accept the consequences for violating the law,” he said. “[Whereas] lawlessness, what we saw on some of the campuses, was that people were violating just laws and refusing to accept the consequences.”
French argued that campus protests or encampment activities that violate reasonable restrictions are forms of lawlessness that are not protected speech and actually restrict other students’ rights.
“When an encampment breaks through reasonable time, place and manner restrictions, and are violating a just law and then refusing to accept the consequences... you actually start to infringe on the rights of others,” he said. “I think the obligations of universities are to protect free speech, respect civil disobedience and protect the campus or the public from lawlessness.”
Wildman then posed a question to Roth, regarding his Opinion piece for The New York Times that called for his campus to be more politically active this year. Roth described civic engagement as essential to liberal education, and stated that students should be encouraged to participate in the public sphere and activism.
“I do think that one of the ways that people acquire a liberal education is by engaging in the public sphere,” he said. “It is not encouraging activism of a particular sort, but it is encouraging our students to practice democracy as part of what they're learning at a university.”
Roth further noted that the protestors involved in university protests last spring were trying to call public attention to the United States’ support for the Israeli military actions in Gaza, which they saw as unjust, rather than just to break specific rules.
French then defined time, place and manner restrictions for the audience and stated that these regulations for protests are made on a content-neutral basis to give all sides equal chances to voice their opinions and protect individual liberty. Content-neutral time, place and manner restrictions, he argued, do not target the viewpoint of the protests and are in place only to guarantee other students’ and faculty members’ rights and safety. For example, French stated that occupying the quad for several days prevents other students from accessing the space and violates their rights.
Sunstein continued the discussion of restrictions and highlighted that time, place and manner restrictions are not always permissible, but rather are less susceptible to being used to target specific viewpoints.
In response to a question posed by Wildman about whether protestors who strongly value the cause would abide such restrictions, French stated that no matter how strongly the protestors feel, it does not allow for the rights of others to be infringed upon.
“The intensity of your feelings does not trump anybody else's rights,” he said.
French added that he believes student protests can only be considered civil disobedience if the universities actively impose the corresponding consequences and the students accept the consequences — a sentiment to which Roth agreed.
Roth continued by stating that universities should bring swift consequences and disciplinary action to students who violate the university’s educational mission to teach, like students who take over buildings and stop classes or speakers from continuing.
“The educational mission of the institution requires that the classroom is a space for learning, discussion, disagreement, et cetera,” he said. “And if someone takes it over — likely [by taking over] a quad or an office — I do think the consequences should be swift because, these things usually get more complicated and worse the longer they go on and the more violence you need to restore order.”
Wildman then transitioned the discussion to whether anti-semitic or Islamaphobic speech could be protected.
French responded that both speech are absolutely protected speech and highlighted that unprotected speech is legally is a very narrow category. However, French drew a distinction between protected speech and harassment, which targets specific individuals, and stated that universities’ inaction towards disruption and harassment could expose them to legal liability, specifically referencing the Harvard antisemitism lawsuits from earlier this year.
In an email to The News-Letter, Senior Director of Communications and Marketing in the School of Arts and Sciences Kate Pipkin commented on how the insights of the panel discussion relate to the Hopkins community.
“Our panelists emphasized that university students should familiarize themselves with their university's policies on free speech and academic freedom,” she wrote. “Here at Johns Hopkins, students can find that information and other resources at this Free Expressions: Protests and Demonstrations webpage.”
The panelists then reviewed the different obligations of private and public universities under the First Amendment. French noted that public universities are arms of the state and are therefore bound by the Constitution and the First Amendment; private universities, in contrast, possess and exercise First Amendment rights.
“Private schools have much more freedom to orient themselves around a particular point of view and to enforce conformity with that point of view,” he said. “Religious schools do this every day, for example.”
French further pointed out that, while private universities are not bound by the First Amendment, all schools that receive federal funds are bound by the Civil Rights Acts, namely Title VI and Title VII, which prohibit discrimination based on race, color, or national origin.
Sunstein added that certain public universities with distinctive educational missions may regulate free speech accordingly. For example, military institutions like The U.S. Military Academy at West Point and the U.S. Naval Academy may impose restrictions that would not apply to other public universities, and Sunstein explained the underlying rationale.
“[West Point] is creating soldiers,” he said. “That doesn’t mean you have to agree with a set of views or you will be discharged. But there are certain things...let’s say, deeply unpatriotic things, a very extreme set of statements, which would be tolerable at the University of Wisconsin, but West Point could say ‘Not, here, we are West Point.’”
After the question and answer session, the discussion closed with Roth’s remarks on the recent actions of the White House and the federal government regarding academic freedom in higher education. Roth believes that the White House is undermining free speech and academic freedom in universities and civil societies.
“Right now, the federal government is supercharged at squashing dissent and academic freedom across the whole country,” he said. “But the presidents, chancellors and deans [of universities] are scared to death to actually say that out loud.”
Roth voiced his concerns about the current political climate. He warned against the weaponization of antisemitism by Christian nationalists to squash speech on campuses and also highlighted the risks faced by individuals deemed not “anti-woke” enough by the current administration.
“90% of the protests [in the spring] were nonviolent, and [the students] didn't take over buildings,” he said. “But, right now, we have a government out of control trying to destroy free speech and academic freedom.”
French highlighted the silence of faculty in the U.S.’s higher education institutions regarding encroachments on First Amendment rights.
“It is concerning that the universities are too scared to challenge the things that they believe to be First Amendment violations,” he said. “It's infuriating when many of our nation's most wealthy and influential institutions capitulate.”
