The Endangered Right to Assemble on Campus

Universities around the country are rushing out various policies and justifications for containing pro-Palestinian organizing on campus. In early November, Brandeis University withdrew recognition of the campus’s Students for Justice in Palestine group. Not long after, Columbia University suspended recognition of its two pro-Palestinian student groups, SJP and Jewish Voice for Peace, and George Washington University followed with its own suspension of SJP. These decisions deprive the student groups of funding and the ability to hold events on campus. The state of Florida also issued a directive to disband SJP chapters on public campuses.

While these decisions have been hotly debated on campuses and in the media, the debate has largely focused on what has been said by students involved with pro-Palestinian groups and whether those words justify these sanctions. This focus on words and where they fall on a spectrum from “free speech” to “true threat” or “incitement” obscures more than it illuminates.

It obscures that the true threat these campus protests pose is not to their fellow students but to college administrators and their donors, who are uncomfortable with the growing cracks in the hegemony of pro-Israel politics in the U.S. It obscures, moreover, that this threat arises not from the words spoken but from the size, scope and persistence of acts of gathering and organizing. And it obscures that the universities have largely dodged the hate speech debate while latching on to a sanitized but no less dark American tradition of undermining the political power of assembly and engaging in viewpoint discrimination by rolling out red tape.

The official statement from the Columbia administration emphasized that the campus chapters of SJP and JVP had failed to comply with “policies related to holding campus events, culminating in an unauthorized event … that proceeded despite warnings and included threatening rhetoric and intimidation.” It failed to mention that the campus policy that triggered the sanction was one that required students to apply for permission to engage in a walkout 10 days in advance, or that this new policy was implemented within the last few weeks without following established internal procedures.

For more than a decade, I have worked to bring the right of assembly out of the shadows of its more famous First Amendment companion, the freedom of speech. I have uncovered the rich American tradition of crowds, great and small, going back to the Boston Tea Party. I have shown how in the 19th century, assemblies were subject to a single constitutional constraint: they could not engage in violence to persons and property. I have explained how one idiosyncratic decision of the United States Supreme Court in 1897 led us to not only abandon but forget that tradition. Indeed, the Supreme Court has not mentioned the First Amendment’s right of peaceable assembly for more than 40 years.

Peaceful assembly is now understood as a form of expressive conduct and is routinely subject to significant regulation without constitutional concern. As such, these institutions have not acted unlawfully. Brandeis, Columbia and George Washington are private institutions, not even bound by the First Amendment, while the actions of the state universities in restricting assembly are also unlikely to run afoul of the First Amendment.

But they all remain universities dedicated to educating the next generation of Americans, and they ought to be held to a higher standard than legality. They ought to consider what they are sanctioning and reflect on whether their short-term interests align with their long-standing missions.

The value and power of assembly have little to do with the message conveyed. When people gather, including when they gather outdoors in the public square for political ends, they rarely, if ever, offer reasoned argument or debate. They chant. They sing. They hold handmade signs. They make demands—frequently ones that are overstated, conflicting, unrealistic and incoherent. Their chants and signs can be clever, but they can also be shocking, hurtful and even threatening. In our liberal tradition, all this is protected so long as it is not an incitement to violence, but it is easy to understand why none of it seems particularly valuable.

What is valuable are the political returns of the act of assembling. Gathering together reinforces social ties and social solidarity. It allows for the formation of collective identities and forges embodied and agentic experiences of citizenship. Assembling is also a politics of presence—one that allows individuals and groups to demand civic and political recognition and inclusion and can upend public narratives, political priorities, social and economic patterns, and, in certain circumstances, regimes.

SJP and JVP are being sanctioned for the very sort of protest that lies at the heart of the American political tradition, and they are being sanctioned precisely because their acts of gathering are manifesting the attributes of assembly that lie at the source of its political power.

First, by showing up, walking out, wearing kaffiyehs, flying the Palestinian flag, carrying homemade placards and chanting various slogans (even ones that offend others), the student protesters are demanding recognition. “We are here, too!” they say. More than expressions of viewpoint, the decision to appear in public is a claim to civic inclusion and recognition: Palestinians exist in Gaza and also in our communities. This power to force recognition lies at the heart of assembly’s distinct political power.

Second, SJP and JVP are building important social solidarity, laying the foundation for future political capacity. Acts of assembling—both in public to grab attention and in private to organize those public events—build social solidarity. They forge and reinforce new friendships. They create within-group bonds and build bridges with others. Just look at the solidarity protests organized by Columbia’s unsuspended groups in response to the university’s decision.

The democratic returns that arise from assembling create political capacity for the future, including a future of co-existence. As institutions dedicated to educating the next generation of civic and political leaders, our nation’s universities should not underestimate this value. Far more than ideas, association is the grease that keeps the wheels of civic and political participation turning.

Third, the power of public assembly is its capacity to disrupt orthodoxies. The true threat of allowing people to gather in great numbers is not that an assembly might descend into violence; it is that it will upend that which is taken for granted. Public sentiment will turn against South African apartheid. Northern politicians will stop turning a blind eye to the Jim Crow South’s flagrant violations of the 14th and 15th Amendments. Prominently displaying the human cost of Israel’s military actions in Gaza will lead more people to see parallels between the Israeli state and the South African state during apartheid. This is precisely what Israeli prime minister Benjamin Netanyahu feared when he urged Americans to found and fund groups to oppose and undermine the boycott, divestment and sanctions movement.

Pro-Palestinian campus protests, with their persistence, size and authenticity, are building this very type of political power. By showing up loudly and unwaveringly in support of Palestinians in Gaza, young people are demonstrating the cracks in U.S. support of Israel, and they are being penalized for it. The universities deny this.

But we should be clear about what university administrators are up to. Because they would prefer not to hear certain students’ challenges to a prevailing orthodoxy about Middle East politics—challenges that upset many donors—they are establishing new rules, setting up investigations and finding ways to ban student groups.

Neither vague and contested allegations of “threatening rhetoric and intimidation” nor claims that students have failed to follow university procedures before taking action should distract from the true democratic work that is being suppressed by well-meaning administrators at the behest of misguided donors. Universities should hold themselves to a higher standard.