Home » News analysis » Campus protests and free speech: 7 things you need to know

By Ken Paulson, published on May 9, 2024

Select Dynamic field

George Washington University students appear on campus among tents at an encampment set up to protest the Israel-Hamas war on Thursday, May 2, 2024, in Washington, D.C. AP Photo/Jose Luis Magana

Demonstrations surrounding the Israel-Gaza war have erupted on colleges across the country, particularly on America’s most visible and prominent campuses. Hundreds of protesters have been arrested and university administrators have had to grapple with demonstrations and free speech amid news media coverage and public pressure.

The right to protest is at the heart of our First Amendment freedoms, particularly the freedom of speech, and the rights of petition and assembly.

How do those rights – guaranteed in the 18th century – come into play in 2024? A quick overview:

How widespread are the college protests?

The demonstrations have been geographically broad, and widely covered in news and social media. In terms of the number of campuses affected, news media estimates have been in the 60-80 range, though that number expands daily and perhaps exponentially. There are 4,360 four- and two-year colleges in the U.S., suggesting that to date fewer than two percent of schools have had substantial, ongoing demonstrations. But it’s growing.

Do students and professors have free-speech rights?

Yes. The First Amendment protects everyone in the United States from government limits on their speech.

Is there a difference between public and private colleges?

There’s a big difference. Public universities are part of the government, so they are barred from infringing on freedom of speech. Private universities are not government bodies, so the First Amendment doesn’t apply. Private schools can establish rules that limit speech and actions, just as a private club may.

Is there any protection for free speech on a private campus?

Yes. Most private colleges make a commitment to freedom of expression comparable to the rights guaranteed by the Constitution, but such pledges are entirely voluntary and largely self-regulated. A student who believes his or her rights have been violated would have to sue on contractual grounds.

Can protesters be punished for their speech?

Almost never. Government officials have called for the banishment of groups that they regard as antisemitic, but antisemitic, Islamophobic, racist and hateful speech are all protected under the First Amendment. We are allowed to say what we believe, even if most people would regard what we say as deeply offensive. The exception would be what is called a “true threat,” a statement that instills fear of imminent harm in a specific person. That’s essentially one-on-one, a threat to injure someone. Other more generally threatening statements against nations or races are not illegal. 

Can protesters be punished for their actions?

Yes, most protesters who have been arrested have been charged with trespassing or refusing to follow police instructions to remove tents. 

Why can protesters be charged with trespassing on public property? Most are students who pay tuition to a university.

Courts have established the right of public universities to set limits on the “time, place and manner” of protests. This means that while universities must protect free speech, they can set reasonable limits on when and where that speech occurs. These limits must be reasonable, serve a legitimate purpose and still leave adequate opportunities for that speech to be heard. That would allow universities to set reasonable hours for noise and safety reasons, and to ban camping on campus grounds. We have the right to protest, but there’s no guarantee of shelter. 

The Free Speech Center newsletter offers a digest of First Amendment- and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ


More than 1,700 articles on First Amendment topics, court cases and history