We can’t make antisemitism go away by censoring antisemites.
Nevertheless, the Trump administration has said it is combating antisemitism at Columbia University by canceling $400 million in funding and detaining a former student over what the president has vexingly called “illegal protests” against Israel. It is also making a host of additional demands of the university.
Some Jewish groups are applauding the effort. But as an American Jew and free speech lawyer, I can tell you that protest alone isn’t illegal — and that giving the government the power to punish hateful speech will only erode our own right to speak out against hate.
In the wake of the Oct. 7, 2023, attack led by Hamas on Israeli civilians and Israel’s military response, protests erupted on campuses nationwide. Some of the activities by student protesters were unlawful, like blocking fellow students from entering parts of campus or occupying buildings. But many students engaged in pure speech by marching, displaying signs, or shouting slogans. These are protected and celebrated forms of protest in our country. Whether in support of Israel, Palestine, or even Hamas, the First Amendment prevents the government from punishing or censoring them.
As a historically persecuted population, Jews have a vested interest in ensuring American civil rights protections remain in full force. The First Amendment guarantees not only the freedom to practice our religion in this country, but our ability to speak out when our rights and lives are in danger.
In 1943, 400 rabbis marched on Washington to draw attention to the mass murder of European Jews, helping lead to the creation of an American War Refugee Board that saved thousands of Jewish lives. In 1963, American Jewish leaders like German-born Rabbi Joachim Prinz marched again, this time with Martin Luther King Jr. Speaking just before Dr. King’s “I Have a Dream” speech, Rabbi Prinz lamented that his former countrymen “remained silent in the face of hate” and pleaded that “America must not become a nation of onlookers. America must not remain silent.”
But we endanger the ability to speak out when we allow the government to erode our First Amendment protections. That’s why White House statements this week threatening punishment for anti-Israel speech should have all Americans concerned — even those of us who would appear, at first blush, to benefit.
Regarding the arrest of Palestinian protester Mahmoud Kahlil by U.S. Immigration and Customs Enforcement, President Trump said, “We will find, apprehend, and deport these terrorist sympathizers from our country — never to return again.” Secretary of State Marco Rubio posted an advisory from the Department of Homeland Security saying that Khalil had “led activities aligned to Hamas,” and has also claimed the power to deport a legal resident whose activities “would have potentially serious adverse foreign policy consequences for the United States.” But those justifications could merely describe Khalil’s on-campus protests, including his protected speech.
Threatening to deport Khalil without accusing him of any crimes chills speech. And that threat extends to everyone, no matter what side of the Israeli-Palestinian debate you are on, or whether you are promoting or combatting antisemitism. Would a green-card-holding Jew feel free to criticize special government employee Elon Musk for publicly supporting the far-right, German-nationalist AfD party, knowing our government could deem such criticism creates “adverse foreign policy consequences”? That standard is just too vague to risk deportation, and it permits the government to punish speech it just doesn’t like.
The Trump administration’s pledge to remove “pro-Hamas” students, coupled with Khalil’s arrest, make it hard to see the administration’s actions this week against Columbia and other institutions of higher education as anything other than attempts to police and punish campus speech.
To be sure, it has been a difficult year for Jewish college students, and there have been documented instances of bad actors preventing them from getting to class, or even assaulting them. Title VI requires colleges and universities that receive federal funding to ensure discriminatory harassment does not deprive Jewish students of an education, and it is possible Columbia has failed that obligation.
But protest alone is not grounds by itself for a Title VI violation. And the government did not make sure it was punishing only actionable misconduct before canceling Columbia’s funding, like it is supposed to. The Supreme Court rightly set a high bar for conduct that amounts to discriminatory harassment that is supposed to ensure pure speech rarely rises to that level.
And with good reason: Our institutions of higher education are supposed to be a marketplace of ideas. Even if you think those ideas are bad, protecting all speech means your speech is protected, too.
I’m no stranger to fear of the recent public increase in antisemitism. Last year, given online antisemitism approaching the anniversary of Oct. 7, my wife and I chose to keep our daughter home from her Chabad preschool that day. The current political moment terrifies me. Antisemitism is coming from both sides of the political spectrum, and it feels like there is nowhere to run. So instead, I think we should fight.
But allowing the government to ignore our rights to free speech would only deprive us of our most powerful weapon.
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