Supporting Free Speech and Countering Antisemitism on American College Campuses
David E. Bernstein & David L. Bernstein*
Introduction
Many Jewish Americans were shocked and traumatized by the Hamas atrocities of October 7, 2023. Hamas’s attack resulted in the largest loss of Jewish life on a single day since the Holocaust, and many Jews in the United States have familial or personal ties to the victims and their families. Jews naturally expected both outrage at Hamas and sympathy for Jewish losses from friendly voices, and at best embarrassed silence from those who had previously sympathized with Hamas.
Instead, almost as soon as Hamas’s massacres, rapes, kidnappings, and other atrocities were reported, organized student groups around the United States began protesting against Israel and in favor of Hamas. This included widespread campus celebrations of Hamas’s attack.[1] Many observers, Jews and non-Jews, saw praise for an attack on primarily Israeli Jewish civilians by an explicitly antisemitic[2] Islamist terrorist group[3] as inherently antisemitic.
Since then, tens of thousands of students have taken part in demonstrations sponsored by organizations that overtly support Hamas, such as Students for Justice in Palestine.[4] These demonstrations have frequently included what many (quite reasonably) interpret as calls for violence against Israelis, Jews, or both.[5]
More generally, in the weeks and months following October 7, an unprecedented amount of antisemitic vitriol was unleashed on college campuses.[6] Jewish students at many universities, especially elite universities on both coasts, reported incidents of harassment, vandalism, intimidation, and assault.[7] Since October 7, many Jewish students have reported experiencing a hostile environment and feeling threatened, both physically and emotionally.
The obvious question is what, if anything, universities should do about this situation. This question at the top of the agenda of much of the American Jewish world since the fall of 2023. For example, a Facebook group called Mothers Against College Antisemitism went from zero to over fifty thousand members in a matter of weeks after October 7. The shock was felt especially acutely because the worst antisemitism incidents tended to occur at elite universities where Jews have long felt secure, and because the perpetrators were at least in a broad sense among Jews’ historical allies on the progressive left.[8]
Campus antisemitism also became a major public issue outside Jewish circles. It has been the subject of numerous essays, opinion pieces, and several Congressional hearings. Not least, it attracted the attention of Donald Trump during his 2024 presidential campaign, with Trump promising a crackdown on universities that allowed antisemitism to fester.[9]
This article is the product of one and half years of back-and-forth conversations and correspondence between the authors. The authors are, respectively, a moderate Democrat who has spent most of his professional career in Jewish communal advocacy organizations (David L.), and a libertarian-leaning law professor (David E.). Each of us is a committed liberal, in the broad sense of the term.
This commitment to liberalism includes commitments to two positions that many think have been at odds since the Hamas atrocities of October 7, 2023, and the subsequent wave of antisemitism on American campuses. First, each of us is committed to freedom of expression, and believes that universities are a particularly vital locus for open debate. Second, each of us is also committed to the notion that American Jews should not be treated as second-class citizens or otherwise not receive the protection of relevant civil rights laws.
Since October 7, many commenters have seen these positions as irreconcilable and have chosen sides. Some argue that freedom of expression should triumph over antidiscrimination claims by Jews. Others argue the reverse. We, however, are discomfited by this choice, especially because we believe that free speech liberalism is part of a broader liberalism necessary for American Jews to thrive.
We also share the observation that pro-Hamas and antisemitic sentiment on campus arises as part of the general illiberalism attendant to the rise of illiberal left-wing ideologies.[10] We believe that any significant crackdown on free speech will ultimately reinforce illiberalism on campus, and so any short-term gains to Jewish students will ultimately be outweighed by long-term harm to Jews’ well-being.
Over the course of our discussions since October 7, we reached the conclusion that much of the apparent conflict between our liberal values is artificial. Many of the activities championed as part of the pro-Hamas/anti-Israel students’ “freedom of expression” involve actions that either are not speech (such as taking over buildings), are not protected speech (such as vandalizing campus property with graffiti), or are protected speech that is subject to reasonable time, place, and manner restrictions violated by the activists (such as holding protests designed to disrupt campus life). We spend the Part I of this article categorizing and documenting examples of such actions and argue that universities can (and should) crack down on them without infringing upon freedom of expression.
The second part of our article is devoted to more difficult cases, in which freedom of expression and the rights of Jewish students more clearly come into conflict. We analyze several such conflicts with the following background principles: (1) Government authorities should not penalize expressions of opinions, no matter how offensive, solely because such speech may contribute to a hostile environment; (2) while individual students and professors have free speech rights, university departments do not, and even university professors can be subject to investigation and potential discipline if the “opinion” they have expressed is that they intend to discriminate against Jewish students.
A third proposition, that Jewish students should receive the same antidiscrimination protections, and at the same level, as other students, has led to the one point of disagreement between the authors. Part III of this article begins by discussing the double-standard some universities apply to speech that offends Jewish students. As examples, we recount how Harvard and the University of Pennsylvania have declined to censor antisemitic speech on free speech grounds but are censorious with regard to speech deemed offensive to other minority constituencies.
We agree that if a university is cracking down on speech that offends certain minorities but not on speech offensive to Jews, the proper tack is to urge the university to, as former ACLU president Nadine Strossen puts it, “level up” and enhance free speech protections regardless of who is offended. But we disagree regarding what to do if a university obstinately refuses to level up, a disagreement we allow to play out in our article.
As we shall see, David L. believes that we should limit ourselves to consistently demanding that universities protect everyone’s free speech. David E., however, rejoins that both liberal equal protection principles and practical political considerations argue in favor of insisting that if universities insist on punishing speech offensive to other groups, they must apply the same standard to speech offensive to Jews.
Ultimately, our solution to the purported conflict between freedom of expression and prohibiting discrimination against Jewish students is deceptively simple: universities must consistently apply content-neutral university policies, discipline unlawful behavior, and maintain institutional neutrality.
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* David E. Bernstein is Distinguished University Professor, Antonin Scalia Law School. David L. Bernstein is Founder and CEO of the North American Values Institute (NAVI). The authors thank Will Creeley, Zalman Rothschild, and participants in a Voices for Liberty roundtable and the 2nd Annual Voices for Liberty Symposium for their helpful comments. Special thanks to Eugene Volokh for his advice regarding emerging constitutional issues. The authors also thank Anthony Cash for his research assistance. The authors benefited from a grant from the Antonin Scalia Law School’s Liberty & Law Center’s Voices for Liberty Project, generously funded by the Stanton Foundation.
[1] Anti-Israel Activists Celebrate Hamas Attacks that Have Killed Hundreds of Israelis, Anti-Defamation League (Oct. 14, 2023), https://www.adl.org/resources/article/anti-israel-activists-celebrate-hamas-attacks-have-killed-hundreds-israelis [perma.cc/HV9R-FTZSkk].
[2] Hamas Covenant 1988: The Covenant of the Islamic Resistance Movement (Aug. 18, 1988), https://avalon.law.yale.edu/21st_century/hamas.asp [perma.cc/RSC6-ALSS] (translated).
[3] While Hamas’s status as a terrorist group should be obvious, for the record, the US, the EU, the UK, and Canada are among those who have officially designated Hamas as such.
[4] See What is Students for Justice in Palestine, the Hamas-supporting Anti-Israel Group Being Banned on College Campuses?, American Jewish Committee (Feb. 23, 2024), https://www.ajc.org/news/what-is-students-for-justice-in-palestine-the-hamas-supporting-anti-israel-group-being-banned [perma.cc/X5ES-L9YE].
Many of these students do not support Hamas, but that does not relieve them of moral responsibility for participating in demonstrations sponsored by organizations that support Hamas and expressed support for the October 7 massacre. To take a relevant analogy, in 2017 white supremacists sponsored a “Unite the Right” rally in Charlottesville, VA. The rally was billed publicly as a conservative rally defending certain historical monuments, primarily of Confederate civil war heroes. Some rally-goers showed up for that reason, only to leave quickly once they discovered that the rally was sponsored by racists and antisemites who wanted to promote those views.
Progressives (and others) rightly suggested that anyone who stayed through the end of the rally despite knowing who sponsored it was morally blameworthy for, at best, giving tacit support to white supremacy. The same logic applies to students who attended rallies sponsored by groups that support Hamas: anyone willing to attend rallies sponsored by pro-Hamas groups who celebrated the October 7 massacre is morally blameworthy for, at best, giving tacit support to Hamas’s genocidal agenda. One might excuse antiwar students for initially joining these protests, as they were the only game in town. But as weeks stretched into months, and the students failed to form antiwar groups that also opposed Hamas, one could only conclude that allying with groups that did support Hamas did not bother them. At the very least, this shows a striking indifference to the antisemitic ideology that animates Hamas.
[5] Stop and Think: Anti-Israel Chants and What They Mean, Anti-Defamation League, https://www.adl.org/resources/article/stop-and-think-anti-israel-chants-and-what-they-mean [perma.cc/V76J-JLS7].
A good example is the slogan “globalize the Intifada.” This slogan seems to suggest that the widespread terrorist violence of the Second Intifada should be visited upon Jews abroad. Activists who participate in this chant typically claim when asked that they are not endorsing violence, but rather are using the word Intifada in its literal Arabic sense of “struggle.” This in turn makes one wonder why if the chanters: (a) don’t intend to endorse violence; (b) know that Intifada sounds extremely violent to many listeners; and (c) are otherwise speaking in English, they don’t simply chant, “globalize the struggle.”
[6] One underappreciated factor in the unease that Jewish students have felt since October 7 is that accompanying public pro-Hamas was a wave of antisemitic vitriol or privately run social networks that allow for user anonymity. See Campus Antisemitism Online: The Proliferation of Hate on Sidechat, Anti-Defamation League (Jan. 22, 2024), https://www.adl.org/resources/article/campus-antisemitism-online-proliferation-hate-sidechat [perma.cc/7RER-FJDN].
[7] For some data, see 83% of Jewish College Students Have Experienced or Witnessed Antisemitism Firsthand Since Oct. 7 Attack, Survey Finds, Hillel, https://www.hillel.org/83-of-jewish-college-students-have-experienced-or-witnessed-antisemitism-firsthand-since-oct-7-attack-survey-finds [perma.cc/K6C8-XDF6]. Harvard University’s own report on campus antisemitism makes for searing reading. See Presidential Task Force on Combating Antisemitism and Anti-Israeli Bias, Harvard University Final Report (Apr. 29, 2025), https://www.harvard.edu/wp-content/uploads/2025/04/FINAL-Harvard-ASAIB-Report-4.29.25.pdf [perma.cc/LZS6-2Q9V].
[8] The prejudices of the mainstream American Jewish community were such that an outbreak of antisemitism from, say, rural white nationalists in the Mountain West would be regrettable but not surprising; a similar outbreak amount self-described antiracists at places like Columbia or the University of Pennsylvania felt more like familial betrayal. See Jonathan Tobin, Antisemites are Still Proving Why We Need Israel, JNS (May 1, 2025), https://www.jns.org/antisemites-are-still-proving-why-we-need-israel/ [perma.cc/TQ4X-3E8M] (“That so many young people attending school are now the primary victims of the increase in antisemitism is a particularly cruel blow to the Jewish community. Most Jews rightly believed themselves to be fully accepted in American society and very much at home at the elite institutions of higher education, where they had thrived for a century after entry quotas at many schools were largely abandoned.”).
[9] Laura Meckler & Susan Svrluga, Pro-Hamas Messages Intensify on College Campuses, Wash. Post (Nov. 10, 2024), https://www.washingtonpost.com/education/2024/11/10/pro-hamas-protesters-college-campuses [perma.cc/TQ4X-3E8M] (“President-elect Donald Trump has promised to crack down on campus protests, and his allies expect the Department of Education to more aggressively investigate university responses to pro-Palestinian movements on campuses.”).
[10] See generally David L. Bernstein, Woke Antisemitism: How a Progressive Ideology Harms Jews (2022).