18 Pages Posted: 23 Jul 2010 Last revised: 1 Dec 2010
Date Written: July 6, 2010
In the face of mounting campus anti-Semitic incidents in the U.S., college and university administrators are left with the quandary of how to prevent anti-social behavior without running afoul of the First Amendment protections of free speech. The Supreme Court’s recent decision in Virginia v. Black, opens a door to resolving that dilemma.
The First Amendment protection of free speech is one of the most fundamental constitutional provisions. Speech is often regarded to be the most fundamental right to a democracy, but the United States Supreme Court has never been regarded to be an absolute. There are already a variety of legitimate limitations on expression that do not run afoul of the First Amendment, these include defamation, copyright, and fighting words laws.
Any statutory or administrative responses to antisemitic speech on campus must be carefully crafted to avoid running afoul of the First Amendment. Recent United States Supreme Court precedent demonstrate the constitutionality of laws prohibiting the use of hate symbols, like cross burning, to intentionally intimidation others. College administrators can use the Court guidelines to develop a policy punishing the use of intimidating symbols -- such as swastikas and Hamas flags -- on campus. The standard for proving that the speaker meant to intimidate should be the same objective, reasonable person standard applied to public defamation cases. This standard of proof will relieve the difficulty of proving intent, while requiring objective evidence that the speaker used a hate symbol or historic antisemitic trope to intimidate others using university facilities or grounds.
Keywords: Free speech, campus speech, First Amendment, Constitutional Law, Anti-Semitism
JEL Classification: K1, K10, K42
Suggested Citation: Suggested Citation
Tsesis, Alexander, Campus Antisemitic Speech and the First Amendment (July 6, 2010). Loyola University Chicago School of Law Research Paper No. 2010-008. Available at SSRN: https://ssrn.com/abstract=1647283 or http://dx.doi.org/10.2139/ssrn.1647283