US student protests: University leaders must listen and protect freedom of expression

US student protests: University leaders must listen and protect freedom of expression - Civic Space

Students at Columbia University respond to a message of thanks from Palestinians in Rafah for their support, as the protest on campus continues, 28 April 2024. Photo: Caitlin Ochs/Reuters

As student protests, which originally began at Columbia University, spread across the United States and beyond, ARTICLE 19 raises concerns about responses to these protests, and against support for Palestine on university campuses.

We condemn the use of force against protesters and violations of the rights to freedom of expression, protest, and academic freedom. We remind the authorities and university administrations that student protests and movements have been pivotal in many major social and political transformations. Academic institutions and university campuses hold a special role in a democratic society. We call for respect for human rights standards in the institutions’ responses to movements and actions on university campuses. We also urge university administrations and public officials to actively listen to concerns raised by students and the academic community and to address them in a meaningful way. Academia and university campuses must remain vibrant spaces for learning, discussion, protest, and dissent.

For the last several years, debates about the limitations on freedom of expression on university campuses have become a highly-politicised issue in the United States. Tensions have boiled over in the wake of the ongoing conflict in Israel and Occupied Palestinian territories, resulting in the most contentious debate about campus speech in decades.

ARTICLE 19 is concerned about many violations of the right to freedom of expression, the right to protest, and academic freedom on campuses. The responses from many university administrations and public officials have resulted in limited spaces for listening and engaging with various viewpoints and opinions. We especially want to raise the following concerns about the crackdown on student actions:

Political pressure to ignore free speech standards and equate political slogans with hate speech

According to numerous reports, since the 7 October attack by Hamas, US campuses have seen an unprecedented rise in antisemitic and Islamophobic incidents, including scores of hate crimes, assaults, harassment of students and professors, and instances of discrimination. These incidents reflect a country-wide trend. In January 2024, it was reported that the Department of Education initiated over 50 discrimination investigations nationwide, through its Office for Civil Rights, into alleged instances of antisemitism on campuses.

After several universities were criticised for their failure to secure the safety of students on their campuses, Congress held prominent national hearings about the matter. The presidents of several distinguished universities, including Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology, were called to testify regarding speech and antisemitism on their campuses. During the hearing, some members of Congress demanded simplified ‘yes or no’ answers to complex issues. In particular, the presidents were questioned about whether the slogan ‘From the river to the sea’ should be considered a call for genocide. Their responses were consistent with freedom of expression standards: the officials maintained that the answers were context-dependent and condemned antisemitism. However, their words were generally truncated and misquoted in the media, leading to perceptions, some of which went viral, that they condoned ‘genocide’ on their campuses, and subsequent resignations of officials.

Prior to the hearings, in November 2023, Congress passed a largely symbolic resolution stating that ‘anti-Zionism is antisemitism’, conflating political speech with discriminatory expression. 

Restrictions on freedom of expression of students and faculty

Since universities have been caught between extremes of being considered either antisemitic, Islamophobic, or censoring free speech, they have navigated increasingly fraught situations on their campuses, clumsily and without due consideration for and listening to all concerned. In many instances, it appears that universities erred on the side of restricting pro-Palestine or anti-Zionist speech and solidarity actions. 

For instance, Columbia University suspended multiple pro-Palestine student organisations, claiming they violated university policies and engaged in ‘threatening rhetoric and intimidation’. Others resorted to even more extreme measures, such as the State University System of Florida, a system of 12 public universities in Florida, which ordered universities to deactivate pro-Palestine student groups statewide. At Barnard College, a faculty member was removed for posting ‘impermissible political speech’. A student at Cornell University was punished for social media posts, such as ‘Zionists must die’, despite university policies in place that protect such offensive or hateful speech. . The University of Southern California cancelled the graduation speech by the student valedictorian due to concerns about the ‘intensity of feelings’ around the Middle East and accompanying ‘risks to security’.

There have been reports of threats of violence and other attacks on students. For instance, Jewish students at the University of California, Berkeley, were prevented from holding an event featuring an Israeli speaker and forced to evacuate. At the same time, when some students at Harvard published an open letter placing responsibility for the October 7 attacks on Israel, signatories were doxxed, with their names and photos displayed on trucks and billboards.

Crackdowns on student protests

The tensions culminated on 17 April 2024 at Columbia University. Before her testimony before Congress about antisemitism on campus, Minouche Shafik, the University President, resorted to drastic measures and called in the New York Police Department (NYPD) to clear a pro-Palestine encampment on the university campus lawn. The protest was set up by students to pressure the university to cut off its economic and academic ties to Israel. The police involvement resulted in more than 100 arrests, despite the NYPD characterising the protest as peaceful. Many student protesters were also suspended from the university and evicted from their dorms without any due process. 

The crackdown on the Columbia student protests ignited protests at other universities across the country, currently on more than 40 campuses, with more than 800 students arrested since 18 April. As many university campuses are private properties owned by universities, university authorities relied on legislation prohibiting trespass on private space when cracking down on student actions. Similarly to what happened at Columbia, some university administrations have called in the police to end the student protests, resulting in clashes and hundreds of arrests. 

Over the last week, the response to the protest has been marked by the increasingly heavy use of force. For instance, law enforcement targeted student protesters at Emory University in Atlanta, Georgia, with rubber bullets and tear gas. At Ohio State University, a university spokesperson confirmed that state troopers monitoring the protest were armed with long-range firearms. At the University of Texas, riot police, equipped with shields, batons, and assault rifles, were deployed against protesters. 

While many universities announced their focus on ‘de-escalation’ and negotiating with students, several politicians used the opportunity to visit campuses and ramp up tensions. This included the Speaker of the House of Representatives Mike Johnson who, during his visit to the Columbia University campus, talked about calling in the National Guard, and Greg Abbott, the Texas governor, who ordered state troopers to arrest protesters at the University of Texas in Austin as a pre-emptive action to stop students from setting up tents on campus. The actions of Governor Abbot seem to be in direct contravention of his own 2019 campus free-speech law – demonstrating that many crackdowns have more to do with politics than the protection of free speech.

Increasingly violent crackdowns also reignite concerns about the potential use of surveillance powers against student protesters and faculty. For example, there have been calls to use Section 702 of the Foreign Intelligence Surveillance Act (FISA) to investigate potential ‘foreign involvement in domestic antisemitic events’. Section 702 has been previously misused to surveil the private online activity of protesters and journalists without a warrant in order to determine whether they were subject to ‘foreign influence’. Recently, Congress passed and President Biden signed the reauthorisation of Section 702 for another two years, adding new and expanded surveillance powers.

Threats to academic freedom 

Importantly, student protests are carried out not only to show support for Palestine and call for a ceasefire in Gaza. They are also urging universities to divest from companies connected to the Israeli military campaign in Gaza, be transparent about those and other investments, and recognise and respect students’ right to protest without punishment. 

At the same time, several pro-Israel donors threatened to withdraw their funding from universities – including Harvard, University of Pennsylvania, Columbia, among many others – for failure to sanction pro-Palestine student actions, raising serious concerns for academic freedom. It was also reported that some companies ‘threatened to rescind job offers they had made to students, or not hire protesters when they graduate’. 

ARTICLE 19’s recommendations: Urgent call for human rights-based response

The spread of student protests across the US and around the world, including in France, Australia, and Egypt, reignited the debates in the media, within governments, and among the public as to what the right response should be. ARTICLE 19 notes that since all these issues concern the scope of the right to freedom of expression and permissible restrictions on hate speech, the right to protest, and academic freedom, all responses must be guided by international human rights standards.

We are aware that US domestic law might provide stronger protection for freedom of speech in some instances, and legal standards might only bind the government or public universities. However, both the US authorities and private universities must also adhere to and respect international human rights and freedom of expression standards. This is particularly true as US private universities often have diverse international student bodies – therefore their educational environments have a broad global impact.

ARTICLE 19 makes the following key recommendations that should guide human rights-based responses: 

1. Promote freedom of expression, equality, and diversity of viewpoints on university campuses

ARTICLE 19 rejects the view that security requires freedom of expression to be compromised. Except in the limited instances where expression or conduct meets the criteria for restrictions under international law (see more below), the focus should be on promoting a diversity of viewpoints and defending freedom of expression. 

Instead of restrictions, universities must promote open debate and intercultural understanding. They should acknowledge dissenting voices, and support the ability of members of different communities to voice their perspectives and concerns. University administrations should consider resorting to restrictions and the use of force to be an undesirable outcome, and which should be considered only as a last resort. The emphasis should be made on attempts to de-escalate a situation, initiate a dialogue, and negotiate with all concerned. 

This also means that any standards that impact speech must be applied and enforced equally when they target the different at-risk communities; i.e. incitement of discrimination, hostility, or violence toward Arabs or Muslims must be addressed with the same seriousness as incitement toward Jewish communities, and vice versa.

ARTICLE 19 also observes that the reactions of some politicians and public officials to the student actions have been deeply problematic. Politicians and other leadership figures must avoid making statements that undermine respect for human rights and further escalate tensions for political gains. They must stop inciting division by conflating Palestinian support with antisemitism and demonising protesters.

2. Ensure that all restrictions fully comply with international freedom of expression standards 

Under international human rights standards, the right to freedom of expression – freedom to seek and receive information and ideas of all kinds, through any media of one’s choice – is a fundamental right. Universities are key places where ideas should be debated and where offensive and contentious issues should be challenged. This means both speech and counter-speech need to be respected and enabled. 

Although the right to freedom of expression is not absolute, international human rights law requires that any limitation must meet a three-part test focused on legality, legitimacy and necessity, and proportionality. This means that any restrictions must: 

  • Be clearly set in a precise, public, and transparent manner while avoiding the grant of too much enforcement discretion; 
  • Be ‘legitimate’ to protect the narrow interests specifically identified as the rights or reputation of others, or national security, public order, or public health or morals.
  • Be necessary and proportionate, including being the least intrusive means to achieve a legitimate state interest.

Additionally, incitement to discrimination, violence, and hostility can be sanctioned if additional criteria are met (six-part test), including based on the context, intent, type of speaker, and imminence and likelihood of harm against persons belonging to the protected group. 

ARTICLE 19 urges that any restrictions on expression on campus be analysed within this framework. 

3. Avoid blanket bans on expression

ARTICLE 19 observes that the many forms of censorship, dissolution of student groups, or disciplinary actions we have seen in the last months do not meet the scrutiny of international human rights law. They are rarely the least intrusive measures in response to disagreeable, offensive, or disturbing speech and often lead to censorship of political speech. In particular:

  • We highlight that solidarity with Palestinians alone cannot be equated with antisemitism or support for terrorism. Such protected expressions of solidarity include but are not limited to, calls for ending violence in Gaza, calls for a ceasefire, or criticism of Israeli government policies and actions.
  • We warn against blanket positions that any individual phrases or slogans should be uniformly prohibited as incitement to violence, discrimination, or hostility. The phrases under scrutiny include but are not limited to ‘From the river to the sea, Palestine will be free’, ‘Globalise the intifada’ or ‘There is only one solution: intifada revolution’. The words of these phrases alone do not constitute incitement to violence, discrimination, or hostility. If there is an argument that the use of a particular phrase constitutes incitement to violence or discrimination, then it must be established that the expression arises to the requisite high standard under international law in that instance.
  • We maintain that anti-terrorism laws should not be used as a pretext for censoring pro-Palestine expression speech. The expression of political views alone does not constitute providing ‘material support’ for terrorism. We also urge authorities to stop warrantless surveillance of protesters based on Section 702 of FISA.

4. Respect the right to protest, including non-violent direct action

ARTICLE 19 condemns the use of force against student protests in recent weeks. 

We acknowledge that in many instances, student protests took place in the form of non-violent direct action/civil disobedience in privately-owned spaces where more complex restrictions apply. The term non-violent direct action or civil disobedience refers to various tactics and strategies to bring about change using methods of disruption targeted at institutions, actors, or processes, through direct and peaceful means, including conscientious and deliberate violation of the law. 

At the same time, we recall that regardless of the violation of a particular law or internal regulations, non-violent direct action may constitute a legitimate exercise of the right to protest. When carried out in a non-violent manner, this form of protest should be protected under the rights to freedom of expression and other human rights. We also find that private property rights have been unduly applied to deny students the right to protest in places that are either functionally public or where their protest rights may most effectively be exercised – within sight and sound of the university administrations that operate on and control those spaces. 

We condemn the use of force to disrupt student protests and in particular call out the use of excessive force by the police. As the tensions continue on campuses and beyond, we urge the concerned university administrations to acknowledge their failure to facilitate peaceful protest and engage with students to hear their concerns through discussions and conflict resolution. 

We further urge universities and authorities to lift suspensions and other disciplinary actions against peaceful protesters and drop charges of trespass. They should consider non-violent direct action/civil disobedience as a legitimate form of protest, where all restrictions must meet international freedom of expression standards. They must also strike a more appropriate balance between the right to freedom of expression and the right to property.

Any restrictions on protests in the form of non-violent direct action should be based on an individualised assessment in line with the international freedom of expression standards mentioned earlier that appropriately account for the context of each expression. The proportionality and necessity of restrictions should be subject to the public interest assessment. This should take into account factors such as the importance of maintaining the ability of individuals to enjoy their right to protest, the non-violent manner of the expressive conduct, the level of disruption of the expressive conduct, and the actual and substantial harm caused by non-violent direct action. 

ARTICLE 19 therefore urges university administrations and authorities to:

  • Acknowledge that whenever protests end in violence, it was due to their failure to effectively facilitate peaceful protest, prevent violence, and engage in conflict resolution with those who were likely or intending to engage in violence. This is especially relevant in the context of student protests as young people who feel ignored or unheard are likely to engage in protests. 
  • Prioritise the facilitation of peaceful protest and avoid the need to resort to force, even if the protest is considered ‘unlawful’ under law or university regulations. 
  • Fully respect international human rights standards on policing protests and the use of force. The dispersal of any protest should only ever be used as a measure of last resort and should be in accordance with the principles of necessity and proportionality and should be ordered by a competent authority only if an imminent threat of violence outweighs the right to protest. Even if protesters are violent, law enforcement officials can only use firearms to disperse when strictly necessary to protect life. The police may only use tear gas to disperse a crowd when there is more generalised violence, due to its indiscriminate effects and high potential of harm.

5. Defend academic freedom 

ARTICLE 19 recalls that academic freedom is an integral part of the right to freedom of expression. Freedom of expression is important for both formal settings (such as teaching, debates, and discussions in classroom and university settings, and presentation of scholarship or academic publications) and informal settings (on campuses). As mandated by international human rights standards, academics and students must be able to pursue freedom of expression through research, teaching, study, discussion, documentation, production, creation, or writing. 

We urge university administrations to vigorously defend these rights in the context of conflict in Israel and the Occupied Palestinian Territories. 

We endorse the recommendations of the UN Special Rapporteur on freedom of expression in his 2020 report on the freedom of opinion and expression aspects of academic freedom and urge both university administrations and state authorities to implement them. 

In particular, we call on: 

  • Public authorities to recognise the vital importance of academic freedom and institutional autonomy of universities and other bodies that constitute the academic community. Authorities and politicians must refrain from attacks on academic institutions and those who constitute academic communities, and protect them from attacks – insulating them from assault – by third parties. They must also stop using tools of coercion, such as funding cuts, prosecution, or denial of tax benefits in order to pressure academic institutions to undertake certain actions. 
  • University administrations to ensure that members of their academic communities have protection against coercion by third parties, whether the state or groups in society. They must stand up for members of their communities who face attack or restriction owing to the exercise of their academic freedom. 

ARTICLE 19 believes that university administrations and officials should actively listen to concerns raised by students and the academic community and address them in a meaningful way. That is what effective leaders do, and it is how university communities can move forward. Respect for freedom of expression and human rights standards is a must to ensure that university campuses and academic institutions remain vibrant spaces for the exercise of the rights to expression, protest, and other fundamental freedoms.