GW Law Professor Catherine Ross on Campus Speech and Free Expression

By Susanna Granieri

Since the beginning of the Israel-Hamas war, colleges and universities across the country have been embroiled in conflict, with demonstrations from pro-Palestinian and pro-Israeli groups bringing campus tensions to new heights. Some school leaders have been accused of failing to adequately protect their students from bigotry, highlighting conflicts between free speech principles and university codes of conduct.

The explosive and tumultuous campus environments brought top campus officials and other educational administrators across the country under scrutiny, with Congress’ House Education and Workforce subcommittee holding a series of hearings on antisemitism.

• In December, the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology (MIT) faced national backlash over testimonies they gave at a congressional hearing, in which they did not unequivocally state whether calls for the genocide of Jews would violate their universities’ codes of conduct. UPenn President Liz Magill resigned days after her testimony. Harvard President Claudine Gay also ultimately resigned from her post, after the controversy led to a probe of her academic record and accusations of plagiarism.
• In April, Columbia University’s then-president Nemat Shafik also testified before Congress, in which she strongly refuted claims that she allowed the campus to become a “hotbed of bias.” In August, she resigned. 
• In May, presidents of Rutgers and Northwestern University, and the University of California, Los Angeles, were also brought before Congress to defend their decisions to remove pro-Palestinian tent encampments on their campuses. 
• Also in May, New York City Public Schools, the Berkeley Unified School District in California and the Montgomery County Public Schools in Maryland were questioned before Congress on whether they allow antisemitism.  

Several Jewish students from MIT and Harvard filed lawsuits in federal court against the universities, claiming they had tolerated antisemitism. The U.S. Education Department investigated the University of Michigan and the City of New York, finding they did not “adequately investigate complaints about antisemitic or anti-Palestinian harassment linked to campus protests.”

More than 3,500 people have been arrested on college and university campuses since April 18, when Columbia University students set up the first encampment in the country, kickstarting a national movement.

All of this has reignited concerns over free speech rights on campus. 

Headshot of Catherine Ross.

In an interview with First Amendment Watch, The George Washington University School of Law Professor Catherine Ross discusses the important questions that university officials and students should be considering this semester. Ross explains the differences between student speech rights on public versus private campuses, weighs the pros and cons of institutional neutrality, and asserts the importance of having well-crafted rules in place before demonstrations begin.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: What are your thoughts on the handling of the campus protests last semester? Are there universities that you think handled protests especially well or especially badly?

CR: This was an exceptionally difficult set of occurrences, because if you look at it purely from a First Amendment lens, and I’d like to start that way, there were issues about speech and there were issues about conduct. And to the extent that universities were regulating and punishing conduct, such as spray painting buildings, blocking entrance to buildings, occupying buildings, That is not a First Amendment problem, because the First Amendment distinguishes between conduct — including conduct that is imbued with communicative elements, although that’s more protected than if it has no communication — and pure speech. I think that a lot of universities did not pay sufficient attention to or articulate well what that distinction is. So if the conduct was not regulated based on its viewpoint, there was no problem from a First Amendment point of view, with punishing or breaking up large groups and encampments. And one of the things that made this problematic was that the universities were not clear about what they were doing, what rules they were applying, and many of them shifted gears. So they would say “We are punishing,” then “We aren’t punishing.” And that sent a very unclear message to students who were looking forward and thinking about what they might want to do in the future. Whether it be the immediate future or the next semester.

FAW: Looking forward, what do you think is the best approach for universities in formulating policies about free speech and protest? Should even private universities adhere to First Amendment standards since it provides a structure of protected and unprotected speech that comes from more than six decades of decisions by the Supreme Court?

CR: Let’s start with what private universities should do. Because, of course, the universities in California that were primarily affected, many of them were public universities. They must follow the First Amendment. Not true of USC, Stanford, but definitely true of Berkeley and Irvine and some of the state colleges that had occupations. Certainly Columbia, which got so much attention, Harvard, they’re private universities. Most of them have historically said, “We honor First Amendment principles. They are our lodestar.” So to the extent that they have represented that they’re going to use First Amendment standards, students can try to hold them to it, and faculty can hold them to it. And I think it is a very good idea to try to be guided by the First Amendment, because that is the gold standard for free speech. But we all, including the students who are involved in demonstrations, need to recognize that other universities don’t have to do that, and to keep that distinction firmly in mind. Now, one of the reasons that this became so complicated was, first of all, you sometimes had counter demonstrations. And even there, the First Amendment says, law enforcement can try to separate counter demonstrators to keep everyone safe. But we had a problem. It’s not necessarily a First Amendment problem, and it is not unprecedented. There were members of the campus community who felt threatened, and in certain instances, were in fact threatened and assaulted; assaulted verbally, which is one thing, but also assaulted physically. So from a university administrator’s point of view, this was a very difficult problem. What obligation does a community have to protect its vulnerable people who are being targeted? And we had the Jews feeling targeted by anti-Zionism and expressed antisemitism. So while there is a right in the United States to engage in hate speech, there is also some responsibility for what happens after that speech. And here, does it rise to the level of incitement? Well, if it’s incitement, it’s not protected, but incitement is very specific and has to be very targeted and immediate. So a lot of this speech is protected, but deplorable. 

It’s often said that just because the First Amendment allows you or protects you in uttering certain things doesn’t mean you should say them. And so in a college or university setting, there’s also an educational component. And so one of the things that I don’t think the colleges did enough of was seize a teaching moment, and say, “One, your conduct isn’t protected, your speech is protected. But I’m the university president, and I want to explain to you what is wrong with some of this speech,” and there are examples from other episodes and in our history, including our recent history, of college presidents saying, “I don’t approve of your speech, not because of its viewpoint, but because it is hate speech and it hurts people. And I’m going to organize a counter demonstration that says Jews are safe,” or “Arab Americans are safe.” Whatever group is feeling targeted on a particular campus. And I think there’s a very important role for that, because going back to basic principles, the best response to bad speech or noxious speech or hateful speech is more and better speech, and we saw almost none of that. 

FAW: There are student and faculty handbooks published by private universities that expansively promise free speech rights on campus. Does this amount to an enforceable right to what the First Amendment guarantees?

CR: That’s complicated. Certainly, there are some cases, and there are many people who believe it’s an enforceable contractual right. It would require looking at the specific language and what the university holds out in its literature or anything that’s executed with the students. I think there would be different levels of enforceability depending on what the university actually said.

In other words, we don’t really have catalogs anymore, but when people are applying, or after you’re accepted, and you’re given a copy of the campus code, and assuming anybody reads it, which they mostly don’t. So it’s hard to argue that “I accepted this offer of admission because I read in the campus code that my speech rights would be fully protected.” But some places might say, and maybe after these events, colleges might even modify what they say, but they could say, “To the extent consistent with our educational mission, this university models First Amendment free speech principles.” Now I generally agree with FIRE [Foundation for Individual Rights and Expression], that more First Amendment rights in colleges are better and that students should be able to express their views. And a lot of universities have not done a good job of honoring their promises. But I also recognize that legally, there are distinctions.

FAW: Does the lack of common free expression standards across campuses nationwide increase contention or confusion? What could be done to better educate students in their respective universities on their right to free speech?

CR: The first thing is I really do believe that students should arrive in college already knowing what the First Amendment guarantees them and how to exercise their rights responsibly, by which I mean how to have an exchange of opinions. Many of them are coming to college from campuses that are bound by the First Amendment, to the extent they’ve gone to public schools. And if the public schools were doing a better job of respecting student speech rights and teaching about them and modeling them and seizing teaching moments, then students would be much better positioned to understand what their colleges are telling them when they arrive. But that’s not the case. So students arrive and they’re pretty confused. And it’s also important, I think, to include the rights and the responsibilities of free expression when people arrive for their orientation. Most colleges now have a week or so of orientation, and that should be a subject, because we know that it’s going to arise in moments of political focus or tension.

And so when you say, should there be common standards that cut across the nation’s colleges? I don’t really see how we could do that, because first we’ve got the public/private distinction, and then we’ve got the different sets of rules and codes that the private institutions establish. So it would be lovely, I mean really lovely, if we had a consensus that freedom of expression remains a paramount value for our democracy, and that we all had a common understanding of that, well, then we would expect to have common currency about what students can and can’t do? But that is so far from the situation we’re in currently.

You also have the problem of both faculty involvement in controversies and institutional positions, which are distinguishable. So far we’ve been talking about student speech rights. And of course, faculty have speech rights also, and that includes the right to take positions on current issues. But there were also some very disturbing allegations about faculty who took positions that bled over into their teaching and professional obligations. And of course, that has different implications for tenured and untenured and non-tenured track faculty. But to the extent that faculty or whole departments took positions publicly and on, let’s say, department websites, favoring one side or the other in the Gaza conflict, that has implications for the students who feel, with some justification, that if they have a public position that is at odds with their professors or with their department, they will be disadvantaged. And so that becomes a very complicated question. And then there’s been a revisiting of the Kalven Principles. Harry Kalven was one of the first major First Amendment scholars during the ‘60s and until his death, and he was at the University of Chicago, and he wrote the original University of Chicago Speech Principles in which he said that universities should not take a position on contemporary political issues. There was a period when a lot of well-meaning people thought it was very important for universities to weigh in on major issues because of the expertise among the community, the research skills, it was perceived that they could make a difference. And last spring, a lot of people started rethinking the variance from the Kalven principles and reasserting, and a number of schools have recently said, “We’re no longer going to allow an institutional statement about public policy issues.” There’s a stepping back from that, and this is a very important aspect of the movement to disinvest in Israel, because that is an official position. When students ask the Board of Trustees, or the faculty says, “We want to divest,” that is an official position.

FAW: There are an increasing number of institutions that follow a policy of institutional neutrality, by rule not commenting on public issues. What’s your assessment of that approach?

CR: That is actually one of the most difficult questions for me, personally, because of my own evolution and the evolution of the way things have played out on campuses and things looking much more complicated than they did when I was 20. Not just because I’ve changed, but the world has also changed. [The University of Chicago speech principles] were very concise, and those were the rules that were in place from the early ‘70s until Geoffrey Stone revisited the issues in the 2000s. And he did take the position that the institution as such should not take position on current policy or political disputes. Obviously it came right at the end of what we refer to as the ‘60s that lingered into the early ‘70s. And I was an undergraduate at Yale College in the first class that included women during the Black Panther trial. And that was going on during all the anti-war protests. And at that time, many undergraduates, including me, thought it was very important that we all take a position, not so much in terms of a vote of the faculty or certainly not the board, but that Kingman Brewster, who had been a law professor and was the president of the university, and was really a transformative and courageous president. He’s the person who said, “We have to admit women.” And he also was overseeing a university that was admitting far more public school students than ever before. It was a very different undergraduate population, and we asked him to make a comment, and he did. Obviously, in all of these political groups, there are many different viewpoints. So there were some people who said, “Don’t convict the Panthers,” and others, including me, who said, “We want to be sure they get a trial.” Because there was a lot of public pressure. There was a very political trial, with a really crazy judge in the aftermath of the ‘68 Democratic Convention in Chicago. What happened was really over the top, and we were afraid that something like that would happen. So at that time, I didn’t think institutional neutrality was always called for.

And then, of course, there’s the argument that, as Kalven recognized, the university has several essential missions, and two of them are basic research and spreading information to be shared, not just educating your students, which is one of the core obligations, but also getting your knowledge out there. Even if we say institutional neutrality, is there some place where the university’s sense of responsibility to society and what seems to be at the moment, the clarity of the information. I’m very conflicted about how to weigh that. But I do think that’s very different from saying “The only way to build low income housing is ‘x’, according to the social scientists on our faculty.” Is institutional neutrality sort of limited to an official statement by the faculty senate that voted on it, the corporate board, the alumni association? Can the president make a statement saying, “I am not speaking for the university, but this is a subject I feel is just so important that I have to say something about it.”

There are a lot of things that need to be parsed, and that may require different questions to be asked and and you may not have the same outcome for each of the questions. But I think the drift toward being more institutionally neutral makes some sense, and unfortunately, it is also, in part, a response to political pressure from state legislatures on public universities. And the vast majority of students go to publicly funded universities. So there’s a fear of alienating a legislature, which often regards the university faculty and the university as a community, as more liberal or more to the left than the legislature or then the state or locality, and it is part of an effort to undermine expertise, to sideline expertise, and to have the state exert more control over the intellectual life of the university. So you also need to think about, “Why are people returning to institutional neutrality?” And this is a very big problem today, obviously, where we have candidates for the highest offices saying they want to basically take over and neutralize universities, and we’ve already seen this in Florida. I don’t want to separate the question of institutional neutrality from the question of, what is the impetus for it? And then what does institutional neutrality mean for individual faculty? Well, all the principles of academic freedom indicate that individual faculty absolutely can express their views on public interest, and should be protected in doing that, especially if they have tenure. And they will always be identified as being a faculty member at “x” university, but as long as they make it clear, because that’s where their expertise comes from, that’s why we might listen to them. But it should be clear that they are not speaking for the university.

FAW: Hateful speech was uttered on campuses during demonstrations, including, but not limited to, antisemitic rhetoric. During a congressional hearing on campus antisemitism, Rep. Elise Stefanik questioned the presidents of Harvard, MIT and the University of Pennsylvania, about whether certain antisemitic speech violated the colleges’ codes of conduct. But, free speech experts acknowledged that hateful or abhorrent speech is still protected under the First Amendment so long as it doesn’t constitute a true threat, harassment or lead to incitement of imminent violence. What did you make of the public controversy around that testimony?

CR: I watched the testimony, so I had a live reaction before everybody else had jumped in. [Rep. Stefanik] was trying to make a political point, but she asked a difficult question in a yes or no format, which the witnesses should not have accepted. Their legalistic, narrow answer that they all shared was, to use a perhaps overused word, deplorable. All speech questions take place in context. When we talk about the First Amendment speech right, we often talk about what is known as constitutional facts, context in which this happened, in order to understand it. Was it more conduct, was it more speech? Things like that. What did the words mean? What did the speaker intend them to mean? What did the listener hear? Which comes up in some of these exceptions that you’ve accurately summarized. So it wasn’t enough to say it all depends on the context, because there was, in fact, a context, and it could have been explained for each of the institutions, so they let themselves get boxed in. So then we get down to some sort of more complicated analysis of what does the phrase “From the river to the sea” mean? And there are huge debates about that. And you have to ask, “Does the person saying it have a clue what they’re talking about?” Well, it turns out a lot of them have no idea what it means. But that doesn’t make it any less clearer a statement to the Jewish person hearing it, or the Israeli person hearing it: It means wipe Israel off the map and run all the Jews into the sea so they drown, get rid of all the Jews. So if you’re a public university and you’re bound by the First Amendment, hate speech is protected unless it crosses these lines. If you’re a private university, the First Amendment is not binding, although many private universities and in general, I believe this is the right approach, say “It’s our intention,” or “We are committed to preserving First Amendment rights at our institution.” 

That said, universities, it can be argued, also have an obligation to the students who elect to come there. And so universities might draw some lines and say there are some particularly heinous forms of communication that in the interest of our community, we are not going to tolerate. They can. Now, that’s a very hard thing. How comprehensive will that list be? Will it be one or two really well-cabined, well-defined things? As a legal matter, they can. And my preferred approach, though many people today say, “well, it’s not enough,” is the more and better speech. The university, of all places, should be a place where we can talk to each other. We’re not. We’re not in that place right now. I also think it’s very important that before demonstrations, [universities] have content-neutral rules in place that are well-crafted, that they make sure all the students know the rules, that they enforce them, and they make clear that there will be punishments if the rules are violated, and that they will not be forgiven, that the punishments will be enforced. And that is something that I think a lot of schools did this fall, and I think that registers with students that there could be consequences. There’s nothing wrong with taking consequences for your speech and even for violating speech rules, as long as you’re willing to take them. That’s like people who leak information, they should understand. They can be punished. It may be worth doing and could be a great social service, but it’s not protected. So I think those are important steps, as well as responding to speech.

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