Below is my column in USA Today on the “deactivation order” issued to a controversial pro-Palestinian group at the University of Florida. The order in my view is unconstitutional. We need to focus on deterring acts of destruction and any violent threats or acts on our campuses. We can maintain a safe space for all of our students without sacrificing the free speech rights that are the foundation for higher education.
Here is the column.
The issuance of a deactivation order last month in Florida sounded like it involved a routine decision by the utility to cut off service because of an overdue bill. In reality, it involved the deactivation of the free speech rights of a controversial group, and the bill may prove prohibitively expensive for many citizens.
The order in question was issued by Raymond Rodrigues, the chancellor of Florida’s university system, to the University of Florida chapters of Students for Justice in Palestine. The SJP has been under fire for its statements in support of Palestinians after Hamas’ Oct. 7 massacre in Israel.
I have previously written that Hamas is factually, legally and morally a terrorist organization. However, the banning of the student group in Florida represents a clear denial of free speech rights under the First Amendment.
Rodrigues has indicated that he made the decision “in consultation with (Gov. Ron) DeSantis” due to the SJP national body voicing support for the Palestinian “resistance” and rationalizing the Oct. 7 attack as the result of Israel’s “apartheid, ethnic cleansing, indiscriminate bombing” and other “provocations.”
That advocacy is being used to suggest that the group is guilty of a felony under Florida law to knowingly provide material aid or resources to a designated foreign terrorist organization.
However, no such charge has been filed. Indeed, no charge could be sustained on this basis. Political advocacy is not a crime in this country and cannot alone constitute material support.
The SJP’s anti-Israel language and its support for Palestinians fall squarely within protected speech under the First Amendment. The emphasis remains on the word “material,” not political support under these laws, and has not yet been shown in Florida.
Under cases like Holder v. Humanitarian Law Project, the Supreme Court has emphasized that criminal material support of terrorist groups cannot criminalize simple advocacy. Rather, it requires “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”
The court also has stressed in other cases that the First Amendment protects the right of students to associate and advocate on campuses on issues of public concern.
Our universities must remain places where students feel safe to voice their viewpoints, and threatening or violent acts, including tearing down flyers about Hamas’ hostages, cannot be tolerated. However, campuses also must remain places where diverse viewpoints can be expressed. Free speech remains a critical guarantee for higher education.
Other schools such as Brandeis University have banned SJP and my own university, George Washington, issued a temporary suspension. Those, however, are private universities. They can face lawsuits over violating their own free speech principles, but Florida is a state actor barred directly under the First Amendment from such content discrimination.
Conversely, we have seen students and professors accused of inflammatory rhetoric against Hamas subjected to suspension or forced to teach remotely.
It is a pattern that has repeated itself with cyclic regularity throughout our history. In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I explore periods of “panic politics” and how inevitably the first victim is free speech. The same pattern appears to be happening now in Florida.
Silencing opposing views is never an effective way of combating ideology. A Quinnipiac University poll found that, among Democratic voters, 41% said their sympathies lie with the Palestinians, while 34% said they were more sympathetic to the Israelis. Overall, the percentage of Americans who support Palestinians rather than Israelis is smaller but growing.
Responding to these citizens with censorship will only further fuel the rage while undermining free speech for all Americans. speech
There is an alternative. Universities can enforce policies barring threats and violence while allowing good speech to counter bad speech.
We have seen the alternative. It is to succumb to the monster of sedition and speech crimes. In every prior period, the fear and anger were genuine and often understandable. However, they resulted in the abuse of minority groups and dissenting views in society, from communists to feminists to civil rights advocates.
We have seen censorship and cancel campaigns also directed at Jewish groups, including the disgraceful destruction of Hamas hostage flyers by lawyers and professors. We have also seen school publications push back on pro-Israeli writers. And we have seen rising antisemitism, physical abuse and violent rhetoric directed against Jewish students. None of that can be tolerated on our campuses.
Florida is likely to lose the fight over its deactivation order because it is attempting to deactivate the exercise of free speech. That is the very right that defines us as a nation.
It is also a right that has been in a free-fall on college campuses in this era of cancel campaigns. Conservatives have rightfully denounced such campaigns, which largely target conservative, libertarian and contrarian speakers. Indeed, universities have been complicit in rising orthodoxy and intolerance on our campuses, including the dramatic reduction of conservative and libertarian faculty.
DeSantis should reconsider the implications of this action. The First Amendment was not created to protect only popular speech. It was a truly revolutionary statement that we would protect all views, including those we may find wrong and offensive. It is a protection of the least popular among us. It is a covenant among citizens that we will fight for one another’s right to speak regardless of our disagreement with the underlying views.
Whatever the cost that SJP’s speech may have for schools, it pales in comparison with the cost of censorship. That is a bill that must be paid by every citizen when we try to silence the few for the satisfaction of the many.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on X, formerly Twitter, @JonathanTurley
“However, the banning of the student group in Florida represents a clear denial of free speech rights under the First Amendment.” Does the First Amendment guarantee the right of groups to speak? Is not calling for the death of people part of the list of free speech exemptions? Funny, but I cannot recall free speech discussions from German and Japanese groups in the years surrounding WW2. If a single pro-Hamas individual wishes to state a viewpoint I see no problem but when hundreds or even thousand gather and mob mentally controls events who has the responsibility for the outcome? Are police the arbiter of free speech? Has anyone been arrested/convicted/imprisoned in recent history for the extensive damage done and lives lost due to the mobs use of free speech and peaceful assembly? Were not the events of J6 in Washington nothing more than (mostly) free speech for which severe penalties have been applied? Free speech must be protected. Mob rule must be depressed. The question is how.
Does the First Amendment guarantee the right of groups to speak?
Yes, obviously. “Groups” are simply collections of individuals. They have all the rights that their members do.
Is not calling for the death of people part of the list of free speech exemptions?
No, it is not. Very much not; in fact it is specifically excluded from that list. (Go find the list, and you’ll find the exclusion.)
The Moslem Brotherhood is indeed a foreign terrorist organization, and should be so designated. But that would not cover SJP, which (a) is not foreign, and (b) has not committed any acts of terrorism. The fact that it is “part of” the same overall structure would not be legally significant unless you could show that it is in fact directed and controlled by the Brotherhood, and its existence as a separate entity is a sham. And to convict someone of a crime you’d have to show it beyond reasonable doubt.
Are you sure that the first amendment covers campus groups on campus property?
Yes, of course it does, so long as that property serves as a traditional or limited public forum, which university campuses have always done.
If those state colleges are an extension of government, can government union workers celebrate Hamas’s butchery in exactly the same manner on government property?
Again, of course they can, so long as they do it in a space that serves as a traditional or limited public forum.
Turley wrote it is perfectly constitutional for government to enact “reasonable restrictions” on the exercise of the Second Amendment by individuals throughout America.
Yes, of course it is. The same is true for the first amendment. Speech can be subject to reasonable restrictions, so long as they are viewpoint-neutral.
That presumably includes college’s absolute prohibition on students exercising their Second Amendment rights while on those campuses is a reasonable restriction.
Where did you get this “presumption” from? The precise boundaries what is a reasonable restriction on keeping and bearing arms have not yet been explored, because the courts have only just started taking the 2nd amendment seriously. The equivalent boundaries for reasonable restrictions on expression were worked out long ago, because the courts have been taking the first amendment seriously for almost a century. I doubt that a complete ban on carrying on campus would pass muster, but no court has yet considered the question, so we’ll have to wait and see.
Funny, but I cannot recall free speech discussions from German and Japanese groups in the years surrounding WW2.
They had the full freedom and protection of the first amendment. Can you cite any examples of them being shut down for mere advocacy?
when hundreds or even thousand gather and mob mentally controls events who has the responsibility for the outcome?
Those who engage in violence, or incite it. But in order not to be forced to strike down the laws against incitement, the courts have had to define it extremely narrowly and precisely. If you catch someone inciting the commission of any crime, as defined by the courts, inform the police and that person will be arrested.
Are police the arbiter of free speech?
No, the courts are.
Has anyone been arrested/convicted/imprisoned in recent history for the extensive damage done and lives lost due to the mobs use of free speech and peaceful assembly?
No damage has been done, nor any lives lost, due to anyone’s use of free speech or peaceful assembly. People have been arrested, convicted, and imprisoned for committing and/or inciting those crimes, which were not exercises of free speech or assembly Not nearly enough people, but that’s a question of implementation, not of principle.
Were not the events of J6 in Washington nothing more than (mostly) free speech for which severe penalties have been applied?
The events were indeed mostly free speech, but nobody has had any penalties applied for that. Everyone who has been punished was convicted of an actual crime, not merely of speaking or assembling, although the prosecution and judges have been incredibly biased against them, their trials have not been fair, and many of them may well be innocent of the crimes of which they were convicted. But again, that’s a question of implementation, not of principle.
“I have previously written that Hamas is factually, legally and morally a terrorist organization.”
“However, no such charge has been filed. Indeed, no charge could be sustained on this basis.”
Turley has a basis for his comment but, …
The Muslim Brotherhood is a terrorist group that should be deemed so by law. Many countries have done so. That would eliminate SJP and others because they are a part of the Muslim Brotherhood, and that is why they support Hamas.
The federal government came close to designating the Muslim Brotherhood as a terrorist organization in the past, so I wonder if a state can do something similar on a state level.
The Muslim Brotherhood Declaration says that they wish to destroy the West, which is the basis for many violent Muslim groups that connect to the MB. SJP is one of those groups. “The SJP’s anti-Israel language and its support for Palestinians may fall “within protected speech under the First Amendment,” but the government has a right and an obligation to protect its people from terrorist organizations clarifying what issues are concerning.
(“Supreme Court has emphasized that criminal material support of terrorist groups cannot criminalize simple advocacy. Rather, it requires “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”) The SJP is such an organization.
In that way, there would be no conflicts regarding freedom of speech, with the additional benefit of freeing many American Muslims who could then live the American dream.
Turley never seems to get it right when it comes to ‘HIS’ side of things.
What is he wrong about ?
Are you sure that the first amendment covers campus groups on campus property? If those state colleges are an extension of government, can government union workers celebrate Hamas’s butchery in exactly the same manner on government property? If they’ve been robbed of their First Amendment rights as Turley says, that means the group cannot walk off the property onto a bordering sidewalk/street and then do their celebrating and advocacy? I don’t see that prohibition on them doing that.
What I notice is that just the day before in a column on the Second Amendment, Turley wrote it is perfectly constitutional for government to enact “reasonable restrictions” on the exercise of the Second Amendment by individuals throughout America. That presumably includes college’s absolute prohibition on students exercising their Second Amendment rights while on those campuses is a reasonable restriction.
Turley has no problem with that complete prohibition being one of those “reasonable restrictions”. The First Amendment??? Now that’s COMPLETELY DIFFERENT!
Stare decisis is also a foundation of Constitutional law – far more than whether or not learning on campuses will be inhibited by telling college affiliated groups they can’t advocate for the genocide of Jews while on campus grounds.
You can call it Turley’s roots as a Democrat/progressive leading to an intersectional struggle session that leads to the blatant inconsistency regarding rights. Others might say he doesn’t get it right when it comes to rights he doesn’t care much for versus his defense of what he believes cannot have those “reasonable restrictions”.
Florida “is attempting to deactivate the exercise of free speech.” (JT)
How on Earth did you reach that conclusion?
There is nothing in the order that bans those students from speaking on campus. There is nothing in the order that criminalizes any expression of their opinions. They are still perfectly free to publicize their ideas, as an individual or as a group.
The *only* thing that order does is decertify SJP as a *student chapter*.
Deactivating the group denies them the ability to organize events, access student funds for speech activities, to bring speakers to campus.
It severely hinders free speech rights.
It isn’t one of Turley’s “reasonable restrictions” to deactivate the group like the campus complete ban on INDIVIDUALS exercising their Second Amendment right on campus. Including Jewish students being openly threatened and attacked on campus? If it isn’t; what’s the difference? Consistency matters.
Second question: why wasn’t Turley writing this column in recent years past when sororities were shut down due to deaths from hazing, sexual harassment, etc? After all, those groups weren’t exercising their First Amendment rights to celebrate the butchering of Jews and advocate for their extermination – including the Jews who are also on campus.
Again, consistency matters.
Turley fails that test badly; he can’t have it both ways.
The column the day before, lecturing that it is a reasonable restriction on the Second Amendment for colleges to have absolute prohibitions of bearing arms for defense on campus. And the next day, arguing that it is horrible that this group was essentially told “you don’t as a group get to advocate for genocide while on our campus”. And why the sudden concern for groups First Amendment rights now – and not all the previous occasions where sororities being shut down on campuses were in the news?
No sorority was ever shut down for exercising its first amendment rights. The rules governing such organizations have been viewpoint-neutral, which is why they are constitutional.
College groups were deactivated in the past for all sorts of things, but that doesn’t necessarily deny an individual’s free speech. Hamas groups have been violent. Therefore, deactivating them is a reasonable idea, since the individual’s freedom of speech does not disappear.
It is a close call, depending on the wording of the law but one should understand they are an offshoot of the Muslim Brotherhood, which is a terrorist organization, even though America is behind in labeling them in that fashion.
You are on the Wrong Side of Citizens united and a long line of free speech cases.
Government is barred from regulating speech through the back door.
It can not do so by granting privilege to those engaged in favorable speech or denying them to those engaged in unfavorable speech,.
and most specifically it can not regulate money as a way to regulate speech.
You’re launching from the wrong foot claiming this looks even remotely like Citizen’s United. And doing so while Turley doesn’t question that a government can indeed prohibit a worker’s group marching around on government property whether they’re advocating for the NRA or Hamas.
And probably like Turley, you weren’t claiming colleges shutting down sororities in recent years since Citizen’s United was government regulating the First Amendment rights of those students.
Just as you aren’t likely to disagree with Turley’s take that campuses absolutely prohibiting the Second Amendment rights of individual students on campus is merely a “reasonable restriction”.
Consistency/stare decisis matters.
As you point out, nobody is being denied their right to free expression. A more logical argument is that the SJP student members are being denied their First Amendment right to freedom of assembly.
However, the order expressly states the affected SJP students are free to organize a new organization with goals and purpose identical to that of SJP. If students do choose to create a new organization, then the requirement that the organization be officially recognized prior to the beginning of the academic year (presumably to be eligible for funding) will be waived.
So nobody’s right to free expression has been denied. Freedom of assembly to align with SJP has been violated, but perhaps the Rube Goldberg-like legal technicalities cited in the order will hold up legally. I don’t know if I buy it.
However, Turley’s free speech argument does not make sense to me.
“. . . being denied their First Amendment right to freedom of assembly.”
That argument fails, too.
There is nothing in the order that bans SJP members from gathering or protesting.