*Elle Johnson
I. Introduction
College campuses noticed a major uptick in student-led protests and demonstrations after the Israel-Palestine conflict escalated in October 2023.[1] In Spring 2024, law enforcement officers arrested thousands of student protesters in Spring 2024,[2] an eerie reminder to many Americans of a similar time in U.S. history: the 1960s Anti-War Movement.[3]
In the 1960s, college campuses across the country erupted in chaos as students protested U.S. involvement in the Vietnam War.[4] Demands for change culminated in a politically charged climate for legal pioneers where the First Amendment served as a battleground.[5] Legal victories on the First Amendment provided student protesters a legal shield and a safeguard to their liberty.[6]
Although landmark decisions emerged to preserve First Amendment freedoms,[7] the Supreme Court has spent the past fifty years narrowing the protections they established.[8] Where student protesters once enjoyed considerable First Amendment protections, today’s demonstrators enjoy only a shell of those former rights.[9] Now, as pro-Palestine activists face the President-elect’s threat to “set [their] movement back 25 or 30 years,”[10] protesters are left vulnerable to the dangerous consequences of the dilution of free speech.[11]
II. Advancement of Free Speech During and After the 1960s Anti-War Movement
The major First Amendment cases that contemporary student protesters draw upon for their freedom of speech and expression arose during and after the 1960s Anti-War Movement.[12] Recent student demonstrations utilize civil disobedience as a protest tactic, protected by Brandenburg v. Ohio.[13] Students often use academic institutions as venues for political activism, shielded by Tinker v. Des Moines unless their expression would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”[14] Even when protesters convey controversial messages, Street v. New York protects them against restrictions imposed “merely because the ideas themselves are offensive to some of their hearers.”[15] The Supreme Court guaranteed substantial protections for protestors during and after the 1960s Anti-War Movement, demonstrating a commitment to preserving First Amendment rights.[16]
III. The Modern Regression of First Amendment Rights
The Supreme Court shifted its approach in subsequent disputes, carving out exceptions to the First Amendment liberties that student protesters rely on.[17] For example, since Snyder v. Phelps, the protection afforded to protesters varies depending on the issue they advocate for.[18] The Court further diluted First Amendment rights by opening the doors to intrusive government regulation of peaceful symbolic expression.[19] After Carey v. Brown emphasized that “the right to communicate is not limitless,”[20] demonstrators who picket, host sit-ins, and establish encampments face a larger threat of suppression.[21]
United States v. Grace perpetuates the heightened danger, exposing protesters in public forums to time, place, and manner restrictions.[22] The Court does not apply a strict scrutiny standard when reviewing such regulations,[23] so the government can impose restrictions that are more intrusive than necessary.[24] Modern caselaw illustrates the Supreme Court’s shift away from fortifying First Amendment rights and toward accommodating competing government interests.[25]
IV. Conclusion
Student protesters stand at a crossroads as recent rulings undercut the Supreme Court’s vigorous efforts in the late 20th century to expand the protections of the First Amendment.[26] As global tensions continue to rise and more students become empowered to advocate for political change, evolving jurisprudence continues to narrow the scope of the First Amendment.[27] Carve-outs to free speech protections invite dangerous allowances for universities to encroach on paramount First Amendment rights.[28]
Students grapple with this reality when schools stifle their demonstrations, as they now face felony charges,[29] misdemeanor convictions,[30] and threats of deportation.[31] As geopolitical conflicts continue to rage overseas[32] and the U.S. President-elect vows to “crush” the pro-Palestine movement on college campuses,[33] the Supreme Court’s dilution of the First Amendment will pose an even greater threat to protestors and their rights.[34]
*Elle Johnson is a second-year student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Elle received her bachelor’s degree in Criminology and Criminal Justice with minors in History and Music Performance from the University of Maryland. She has interned for Maryland Office of the Public Defender and the Hon. Douglas R. M. Nazarian of the Appellate Court of Maryland.
[1] Associated Press, A Look at the Protests of the War in Gaza that Have Emerged at U.S. Colleges, PBS News (Apr. 30, 2024, 6:35 PM), https://www.pbs.org/newshour/education/a-look-at-the-protests-of-the-war-in-gaza-that-have-emerged-at-us-colleges.
[2] Where Protesters on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (Jul. 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-college-protests-encampments.html.
[3] Noah Caldwell et al., Student Protesters Reflect on the Legacy of Campus Activism During the Vietnam War, NPR (Apr. 29, 2024, 5:14 PM), https://www.npr.org/2024/04/29/1247770751/student-protesters-reflect-on-the-legacy-of-campus-activism-during-the-vietnam-w.
[4] Lyle Denniston, The Campus and the Vietnam War: Protest and Tragedy, Nat’l Const. Ctr.: Const. Daily Blog (Sept. 26, 2017), https://constitutioncenter.org/blog/the-campus-and-the-vietnam-war-protest-and-tragedy.
[5] Free Speech Ctr., Civil Rights Movement and the First Amendment, Middle Tenn. State Univ., https://firstamendment.mtsu.edu/encyclopedia/case/civil-rights-movement-and-the-first-amendment/ (last visited Nov. 2, 2024).
[6] Michelle L. Janowiecki, Speaking and Protesting in America, Am. Archive Pub. Broad., https://americanarchive.org/exhibits/first-amendment (last visited Nov. 2, 2024).
[7] See, e.g., Brandenberg v. Ohio, 395 U.S. 444 (1969) (finding that a State violates the First Amendment when it criminalizes advocacy of illegality that does not incite imminent law violation); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (extending the reach of the First Amendment to public schools); Healy v. James, 408 U.S. 169 (1972) (clarifying what types of student conduct can be regulated); Street v. New York, 394 US 576, 592 (1969) (protecting the burning of an American flag as controversial symbolic speech).
[8] See, e.g., Snyder v. Phelps, 562 U.S. 443, 452 (2011) (finding that the extent to which speech is protected by the First Amendment depends on its subject matter); Carey v. Brown, 447 U.S. 455, 470 (1980) (noting that even some types of peaceful symbolic conduct may be prohibited); U.S. v. Grace, 461 U.S. 171, 177 (1983) (permitting regulations on the time, place, and manner in which First Amendment rights are exercised in public forums); Ward v. Rock Against Racism, 491 U.S. 781, 798–99 (1989) (upholding that a time, place, and manner restriction “need not be the least restrictive or least intrusive means” of regulation).
[9] See Rebecca Tushnet, First Amendment Today: Not Obsolete, but…, 19 A.B.A. Insights on L. and Soc’y 1 (Mar. 26, 2019), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol-19-issue-2/first-amendment-today/.
[10] Robert Tait, Trump Tells Donors He Will Crush Pro-Palestinian Protests if Re-Elected, The Guardian (May 27, 2024, 12:33 PM), https://www.theguardian.com/world/article/2024/may/27/trump-donors-israel-gaza-palestinian-protests.
[11] USA: Free Speech on Campus Needs to Be Protected, Not Attacked, Say Experts, Off. of U.N. High Comm’r for Hum. Rts. (July 25, 2024), https://www.ohchr.org/en/press-releases/2024/07/usa-free-speech-campus-needs-be-protected-not-attacked-say-experts.
[12] William W. Riggs, Vietnam War, Middle Tenn. State Univ., Free Speech Ctr. (July 5, 2024), https://firstamendment.mtsu.edu/article/vietnam-war/.
[13] 395 U.S. 444, 447 (1969) (establishing that state actors may only forbid the encouragement of illegality if such encouragement is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”).
[14] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)). The Court highlighted standards used to evaluate whether student conduct is protected by the First Amendment: “students have no right (1) ‘to deprive others of the opportunity to speak or be heard,’ (2) ‘to invade the privacy of others,’ (3) ‘to damage the property of others,’ (4) ‘to disrupt the regular and essential operation of the college,’ or (5) ‘to interfere with the rights of others.’” Healy v. James, 408 U.S. 169, 189 (1972).
[15] Street v. New York, 394 US 576, 592 (1969).
[16] Geoffrey R. Stone & Eugene Volokh, Freedom of Speech and the Press, Nat’l Const. Ctr., https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/266 (last visited Nov. 2, 2024).
[17] See cases cited supra note 8.
[18] Snyder v. Phelps, 562 U.S. 443, 451–52 (2011) (“[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous. . . because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest. . . .”).
[19] Carey v. Brown, 447 U.S. 455 (1980).
[20] Id. at 470.
[21] Koh Ewe. et al., Pro-Palestinian Encampments Take Over American College Campuses, TIME Mag. (Apr. 27, 2024, 8:53 PM), https://time.com/6969875/pro-palestinian-encampments-take-over-college-campuses-across-america/.
[22] U.S. v. Grace, 461 U.S. 171, 177 (1983).
[23] Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
[24] Id. at 798–99.
[25] See Rebecca Tushnet, supra note 9.
[26] See cases cited supra note 8.
[27] Scott Bomboy, The Constitutional Right to Protest at Universities, Nat’l Const. Ctr: Const. Daily Blog (May 7, 2024), https://constitutioncenter.org/blog/the-constitutional-right-to-protest-at-universities.
[28] Speech on Campus, Am. Civ. Liberties Union (Dec. 18, 2023), https://www.aclu.org/documents/speech-campus.
[29] Meg O’Connor, Prosecutors Have Levied Serious Charges Against Pro-Palestine College Protesters, The Appeal (Nov. 4, 2024), https://theappeal.org/pro-palestine-college-protesters-face-serious-charges/.
[30] Vivienne Serret, Three More Student Protesters Arrested at UF Accept Plea Deals in Criminal Cases, WUSF: Fresh Take Fla. (Sept. 10, 2024, 5:11 PM), https://www.wusf.org/economy-business/2024-09-10/three-more-student-protesters-arrested-pro-palestinian-uf-accept-plea-deals-criminal-cases.
[31] Chris Walker, Trump Tells Donors He’ll Deport “Any Student” Who Protests Against Gaza Genocide, Truthout (May 28, 2024), https://truthout.org/articles/trump-tells-donors-hell-deport-any-student-who-protests-against-gaza-genocide/.
[32] Kara Fox, As the World Focuses on Gaza, the West Bank Has Reached Boiling Point. Here’s What to Know, CNN (Aug. 30, 2024, 2:29 AM), https://www.cnn.com/2024/08/29/middleeast/west-bank-conflict-explained-intl/index.html.
[33] Robert Tait, supra note 10.
[34] See Off. of U.N. High Comm’r for Hum. Rts., supra note 11.
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