Freedom of Expression Does Not Include the Right to Trespass

On Sunday, I wrote, with regard to my new article on freedom of speech and college antisemitism:

Coauthor David L. Bernstein and I spend a fair amount of space recounting examples of antisemitic campus activity that did not involve protected speech, such as vandalism, classroom and library disruptions, threats, one-on-one verbal harassment, assault, and more. Some readers of the draft paper questioned why a paper on free speech and antisemitism talking about things that don’t constitute free speech.

A major reason for doing so is that David L. and I saw that many commentators were portraying the complaints about antisemitism on campus and the antidiscrimination obligations of universities under Title VI as if these complaints solely or primarily revolved around controversial political speech such as “From the River to the Sea, Palestine will be free.”

Another reason we dwelled on activities that did not involve protected speech is to emphasize that such activities are not, in fact, protected speech. This should be obvious, and yet…

As I noted yesterday, federal judge Gerald McHugh described a three-day illicit “encampment” at Haverford College as the college allowing “protestors to freely express themselves for three days.”

Perhaps more egregiously, last fall Professors Evelyn Douek and Genevieve Lakier wrote:

Administrators have also turned to Title VI to justify their decision-making, including their sometimes significant repression of student speech. For example, in April 2024, Columbia University’s then-President Minouche Shafik referred to Title VI to justify her (very controversial) decision to send in the police to break up Columbia’s protest encampment.

Breaking up a protest encampment is not only not a “significant repression of student speech,” it’s not a repression of student speech at all. The students were free to speak; the university had the right, and arguably the legal obligation, to enforce content-neutral time, place, and manner restrictions on the students, and also to stop the students from “occupying” university property, an illegal trespass. Nothing, meanwhile, was stopping the students from tabling, handing out flyers, holding up signs, giving speeches or chanting in ways that didn’t disrupt university functions, or otherwise speaking their Hamasnik hearts out.

As with Judge McHugh, I am confident that at least in certain contexts Professors Douek and Lakier would agree that enforcing content-neutral rules against speakers does not violated free speech rights. I doubt, for example, they would defend the freedom-of-expression-right of students to camp out on their front lawns or in their law school offices on behalf of “Palestine” or anything else.

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