On Campus Chaos

The clouds of war have again descended on the great universities in the United States, including Columbia, from which I graduated in 1964, and NYU Law School, where I have taught, first as a visitor and now as a regular faculty member since 2005. In the crosshairs are several decisive actions taken by and against these Universities, driven in part by the tough stance of the Trump administration, including its stern letter to Columbia, insisting that the school could only reverse the cancellation of some $400 million in general federal research support by taking corrective steps to stop the wave of antisemitic activities on campus, given its past failure to rein in various groups such as Students for Justice in Palestine (SJP) that have long pressured Columbia to sever all intellectual and business connections to Israel. 

The Trump administration demands also include that the University toughen the enforcement of its disciplinary policies by running them through the office of the President, thereby sidelining its University Judicial Board, which had just announced severe sanctions against those students who had occupied Hamilton Hall during the spring of 2024; impose time, place and manner rules to prevent future disruption of academic activities; ban masks used for concealment; adopt a broad definition of antisemitism; and, surely premature and unwise, “[b]egin the process of placing the Middle East, South Asian, and African Studies department under academic receivership for a minimum of five years”—without saying how long that process should last, or who should take on that responsibility.  That unilateral action runs afoul of Title VI, which notes that the government does not have an at-will ability to terminate these grants without meeting some standard but vital safeguards:

42 U.S.C. § 2000d-1 ("Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement . . . or (2) by any other means authorized by law.").

The Trump administration also arrested Mahmoud Khalil for his role as ringleader in the April 2024 disturbances at Columbia. Here, given the difference in statutory standards, it may well be on firmer ground in seeking his deportation under Section 237(a)(4)(C)(i) of the Immigration and Nationality Act (INA) so long as “the Secretary of State has reasonable ground to believe [allowing him to remain in the U.S.] would have potentially serious adverse foreign policy consequences for the United States.”  

The situation at NYU was less dramatic when the University prohibited SJP from staging a sit-in outside the office of President Linda Mills in Bobst Library, where they demanded that she speak to them directly about adopting anti-Israeli policies, which she had rejected multiple times.

The SJP claims are couched in the language of the First Amendment that states, “Congress shall make no law . . . abridging the freedom of speech, of the press, or the right of the people to peaceably assemble.” Putting those words into context sharpens the debate. Looking first at the text, Congress may punish those assemblies that are violent or disruptive. This explicit limitation requires that any use or threat of force be subject to similar limitations, even if speech covers all forms of expression, such as music, dance, and art. The objective is to make a parallel relationship between speech and assembly so it would be odd in the extreme if violent speech received the same degree of protection as peaceful speech. 

It is also necessary to account for two additional variables. First, the right to peaceably assemble could not include the right to enter private property without the consent of the owner, to carry out various kinds of protected political speech, any more than it would be permissible under the First Amendment to commandeer someone’s telephone or microphone to broadcast their message. Stated more broadly, every individual’s First Amendment rights take place within a system of ordered liberty by using the police power to prevent speech, religious activity, or the use of private property from becoming a source of force or fraud against other individuals.

The central inquiry arises when speech with political dimensions also poses a threat to the personal security of others, losing its presumptive constitutional protection. All these issues were raised in connection with the political speech attacked with severity by the Wilson administration at the end of World War I in connection with various socialist and communist projects against that war, which were replicated by similar political protests after World War II. At one point, the “clear and present danger” test, first articulated by Oliver Wendell Holmes in Schenk v. United States (1919), dominated the inquiry and distinguished between those actions that counted as a threat of use of force and which counted as abstract advocacy. While this test, no matter how refined, will give rise to close cases at the margin, all the current controversies do not come close to that line, given their forcible trespasses. Thus, any form of willful trespass falls outside the ambit of free speech, so the occupation of Hamilton Hall is flatly criminal, even if done in support of an overtly political purpose. 

Prosecutorial discretion can insulate taking a pass on these manifest violations of criminal trespass, which means Manhattan District Attorney Bragg’s failure to prosecute every known offender is a serious dereliction of his public duty that is not excused by his claim that the invaders disabled the surveillance cameras, itself an offense when he had other ample sources of evidence to bring the case to a successful conclusion in ways that would have helped insulate the University from the endless rounds of violence that his timidity unleashed.  On this view, the Trump responses are understood as an effort to (over?) compensate for the breakdown in order by a man whose own anti-Trump excesses rendered him unfit for public office.

The next item of business is the deportation of Mahmoud Khalil, who resides in the United States on a green card, with an American wife eight months pregnant, for his role in those events. That aggressive Trump maneuver has been vigorously challenged as an inexcusable infringement of the freedom of speech—including through sit-ins by Jewish demonstrators at Trump Tower, who fear a repetition of the Holocaust—for activities no different from those done by countless other Palestine advocates. But too much is missing from this threadbare account. The earlier clear and present danger cases did not apply solely to the parties who committed trespass or other violent activities. Instead, in line with standard criminal law, it is possible to hold individuals civilly and criminally liable for activities that offer a direct encouragement of physical violence, even if they do not commit that violence personally. Thus, even the famous concurrence of Brandeis (joined by Holmes) in Whitney v. California (1927) upheld the conviction. The evidence showed that the defendant, as an active communist, was engaged in the active promotion of criminal activities, which fell within the scope of the clear and present test. The basic argument is that criminal conspiracy statutes, along with aiding and abetting, have long been a part of criminal law for literally every kind of offense, given that deterrence could easily fall short of the optimal level if punishment were limited only to completed acts. 

At this point, there is a hard question of fact, asking whether Kahlil was just an observer or an active participant in developing and promoting the violence at Hamilton Hall or elsewhere.  His First Amendment defense falls by the wayside if the latter is true. Practically, given his past activism, Kahlil has a very hard road to establish that Rubio, given his statutory discretion, cannot make out the security risk in one of the most violent actions ever to take place on the University grounds. Thus, he will rightly lose on this point if the predicate offenses are established. But wholly apart from the precipitate Trumpian demands to put a university department into receivership, an internal restructuring by Columbia that addresses its entire departmental structure on its own initiative is long overdue, not just to reduce the odds of further instances of violence and intimidation but also to restore some intellectual balance on a campus on which there are too few conservative and libertarian voices heard.

Fortunately, the NYU incident has not risen to the level that requires external intervention. President Linda Mills and her entire administration handled the matter correctly. A private university must retain control of its premises, and it does not have to follow First Amendment guidelines that apply to the use of public spaces, where time, place, and matter restrictions commonly apply. In this case, the Palestinian demands are over the top. Their point of view has been repeatedly transmitted to and rejected by the administration. Any additional transmission of information can be done by letter, which the University may, as of right, ignore. Putting students in the building is meant as an implicit threat, for if the occupation by 20 students may go on for eight hours, why not twice as long by twice the number of students, who will each need food, resting places, and toilet facilities? The administrative actions shooed them away from areas of contestation but let them go on with their academic and social lives, even though NYU would have been well within its rights to arrest them all for criminal trespass, under the key insight in all First Amendment law that speech gets no greater protection than other forms of action when illegal means are used to achieve any end, regardless of its merits.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013.