On Sunday, April 28, 2024, the student group Wesleyan University Students for Justice in Palestine organized an encampment [as] part of a national movement in protest against Israeli actions in Gaza. The protest also calls for Wesleyan University to divest from companies profiting from the war between Israel and Hamas.

Wesleyan is now part of a larger national debate about free speech on college campuses. Some students believe they are using their free speech grounds to protest what they see as unjust Israeli policy. Alternatively, some Jewish students see the protests as containing antisemitic aspects. Wesleyan University’s student handbook states: “This community’s commitment to the free exchange of ideas and pursuit of knowledge requires a wide range of protections for speech and expression, even when noxious or offensive.” Concurrently, as a recipient of federal funds, the school has a legal obligation to follow Title VI of the Civil Rights Act, which prohibits a hostile learning environment, including for Jewish students. Wesleyan is a private institution—not bound by the First Amendment but voluntarily prescribes to its principles; legally, Wesleyan must follow the Civil Rights Act. Like many schools nationwide, Wesleyan is grappling with how to walk this fine line.

In the landmark 1971 free expression case, Cohen v. California, Justice John Marshall Harlan II wrote: “it is nevertheless often true that one man’s vulgarity is another’s lyric.” Many students may be deeply offended by statements on college campuses around the country such as: “free Palestine” or “from the river to the sea, Palestine will be free.” However, in the spirit of what Justice Harlan said, what one may hear as a call to destroy Israel, another person may hear as a call to dignity for Palestinians. Merely expressive comments are protected by the First Amendment and Wesleyan’s own student handbook. Even chants such as “Globalize the Intifada,” “There is only one solution,” or “We are Hamas” are free speech. On a personal level, I am against such chants, which some may perceive as offensive, but as long as those chants stay as abstract statements, they do not fall into the grounds of unprotected speech. As the Supreme Court laid out in the 1969 case Brandenburg v. Ohio, inflammatory speech is protected by the First Amendment as long as it does not likely lead to imminent lawless action. In Brandenburg, the Court set a very high standard for what speech can be prohibited, but they did that purposefully. As a nation, we have chosen to embrace dialogue, debate, and differing viewpoints, even if we disagree or find them offensive.

Of course, this does not mean all forms of speech are protected. The First Amendment does not provide carte blanche protections for all speech. Courts have determined that unprotected speech includes targeted harassment, true threats, libel, slander, and fraud. If any forms of protest fall into those categories—including targeted harassment or true threats—those can and should be punished by universities and law. While chants of “intifada” are a form of free speech, if said as part of other forms of unprotected speech or behavior—such as targeted harassment or a true threat—then it loses its free speech protections. Around the country, we have also seen instances of assault and battery upon students and police officers—that is not protected.

[Wesleyan] can put forth certain restrictions upon speech while prescribing free speech principles: time, place, and manner restrictions. In short, these restrictions are enforced on a content-neutral basis, meaning they are applied to all groups regardless of their geopolitical views or even in the case of someone advertising a promotion at a restaurant in Middletown. One example of time, place, and manner restriction would be [Wesleyan] restricting public camping. However, the policy would have to be applied equally to both student protestors or a family stargazing for the night on Foss Hill in the summer. The Supreme Court has upheld the constitutionality of content-neutral bans, such as in Clark v. Community for Creative Non-Violence (1984), which found content-neutral bans on public camping in Lafayette Park (outside of the White House) to be legally permissible.

From a policy perspective, [Wesleyan’s] potential enforcement of a content-neutral ban would make sense in certain circumstances, such as in the instance of a student organization camping on a public green and preventing use or passageway for other students. However, a content-neutral ban is not always the best solution for advancing free speech. Take, for example, American University’s inexplicable policy of banning indoor protests and requiring all posters be approved by the university administration—all on a content-neutral basis. The restrictions may be content-neutral, but it is the antithesis of one goal of universities: to foster more speech and expression. Following his speech at Wesleyan during the Hugo L. Black Lecture last month, I spoke to Professor Jeff Snyder from Carleton College about the very issue of content-neutrality. He explained that in many cases, content-neutral restrictions on speech do pass free speech muster. However, students who graduate from universities will not get to live in a content-neutral world. Therefore, if colleges are in the business of helping students get ready for the real world, then content-neutrality is only sometimes the best solution.

I abhor antisemitism and all forms of hate. Personally, I do not agree with some views the protestors hold. I think that Israel has a right to exist as a Jewish state and a right to defend itself from terrorist groups such as Hamas and Hezbollah. However, I do not believe those who hold differing views should have those views silenced or censored. There is a reason why James Madison made the First Amendment first. Madison knew that freedom of speech, expression, and association were the bedrock of the survival of the newly founded nation of the United States of America. Two-hundred and thirty-three years after the ratification of the First Amendment, we should remember why Madison made the First Amendment first.

Blake Fox is a member of the class of 2026 and can be reached at bfox@wesleyan.edu.