When Words Wound: Pure Speech Meets Federal Antidiscrimination Law

Abstract

This article is a timely critique of First Amendment litigation relating to campus protests regarding the October 7, 2023 Hamas attack on Israel.  Much of the litigation in this space is based on claims that certain campus protest activity violates Title VI of the Civil Rights Act and in one recent decision, a federal judge opined that there may be conflict between Title VI enforcement and the First Amendment. 

While the judge’s comments were dicta, they have already started an intense dialogue as to the limits of federal antidiscrimination laws and will likely become an important counterargument by those who support campus protest activity.

This article examines the judge’s comments and compares them to First Amendment precedent and exceptions to the “pure speech” doctrine in the context of Title VI enforcement.  After examining recent litigation and fact patterns from a number of universities, the article concludes that while it is theoretically possible for the type of campus protests occurring across the country to be protected speech, in application Title VI enforcement does not violate the First Amendment.

Keywords: Gartenberg, Title VI, Pure Speech, Cooper Union, Hamas, Israel, Zionism, Free speech, First Amendment, Columbia, Harvard, SJP