Navigating Free Speech at “Hypothetical University”

As my fellow editors and I were putting the final touches on The Free Inquiry Papers (AEI Press, April 2025), we realized that all the essays we had commissioned were written before the eruption of anti-Semitic pro-Palestinian protests in the spring of 2024. We needed someone with expertise in the exercise of free speech, as it extended beyond the classroom and into the elm-lined quads and campus courtyards to interpret the upheaval. So, we immediately turned to Greg Lukianoff, president of the Foundation for Individual Rights and Expression (FIRE), for analysis. His commentary below is an insightful guide on how universities can think about defending the rights of students to protest, protecting Jewish students, and disciplining those who threaten the safety of other students and disturb campus life.

Then, months later, as the book was already in press, the Trump Administration unfurled its campaign to eradicate anti-Semitism and ideological indoctrination in universities by tying federal funding to various demands. In March, the administration moved to cut $400 million in funding from Columbia University unless the school agreed to a set of reforms, including an overhaul of its protest policies, security practices and Middle Eastern studies department.  The highest profile intervention was aimed at Harvard University. It included revisions in admissions and disciplinary procedures, culminating in a threat to remove the university’s tax exempt status or risk losing up to $9 billion in federal funding.

On April 22, 2025, more than 150 university and college presidents co-signed a letter condemning the efforts to dictate the policies of private higher education institutions in exchange for federal funding. “As leaders of America’s colleges, universities, and scholarly societies, we speak with one voice against the unprecedented government overreach and political interference now endangering American higher education,” they wrote. I share their concerns.

My personal addendum is that we mustn’t lose sight of the original provocations that were in place for over a decade – namely, systematic efforts to suppress unpopular scholarship and expression. Even with the current administration’s expansive and, at times, seemingly arbitrary efforts to undo the excesses of the Biden and Obama administrations, the larger goal has timeless merit: to restore academic freedom. – Sally Satel

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Let’s imagine you are the president of “Hypothetical University,” a large private institution in the Northeast. While private institutions are not necessarily restrained by the First Amendment, your institution has long promised students they would have First Amendment rights while they attend. Many courts have enforced promises of free expression as contractual, and in California, a state law prevents colleges from punishing students for speech or conduct that would be protected off campus. Accordingly, HypoU has some legal obligations that limit what actions it may take when there’s unrest on campus. (You will come to find that’s true of the vast majority of higher educational institutions. You could count on one hand the noteworthy schools that have made their reputation on promising less freedom, if you exclude the military academies and highly religious universities.)

Your institution should have rules. The selective enforcement of rules was a major component of the hypocrisy that gave college administrators no moral authority when they needed it. If you persecute professors who use ableist language like “shortsighted” but defend the right to call for the extermination of an ethnic group, you don’t look like someone who cares about free speech; you look like a bigot who plays favorites.

Your rules should be clearly communicated and visibly enforced. Clearly communicated to students in orientation and handbooks, and clearly communicated to campus employees (including law enforcement) in manuals and trainings. Visibly enforced by explicitly defending the speech that falls within them and pursuing the speech that falls outside of them.

In these orientations and trainings, you should train administrators to not police speech or signal political orthodoxies but defend and promote speech and discussion. If you have bias response teams or professors who rationalize things like shout downs and student cancellations, this is the time to start getting rid of them—or at least moving them into positions where they won’t have student contact.

So what are the rules that must be carefully inculcated and respected?

Some of these are mandated by the government and required to remain eligible for student loan funding, such as rules against harassment. Those rules require colleges to limit the harm from conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

For example, in October 2023, a Cornell student was arrested for a series of online threats against Jewish students at the school, including threats to slit the throats of the men, sexually assault the women and throw them from a bridge, and “bring an assault rifle to campus and shoot all you pig jews.” The school, unsurprisingly, acted: They called law enforcement, who arrested and charged the student.

But that is an extreme example, and it’s important to note what the rules do not require the college to do to stop harassment: Censor speakers. Your institution is obligated to take action to lessen the adverse effects of the harassment, but the universe of potential options is unlimited; as long as it doesn’t materially disadvantage either party’s ability to receive their education, that meets the obligation. Some administrators have struggled with the idea that the obligation to act imposed by federal regulations does not create an exception to the First Amendment.

It is possible for someone to have a First Amendment right to participate in a protest, while at the same time, the institution has to do something to help a student who feels targeted by that activity.

This is important because, in response to campus protests, the Department of Education has stated that a college still has an obligation to act when no individual actor has engaged in “severe, pervasive, and objectively offensive” conduct or speech, but the collective action of a group or groups has created a “severe, pervasive, and objectively offensive” environment. For example, if a Jewish student must pass chanting mobs, biased posters, and burning effigies to get to every class, the school’s obligation to offer aid to the Jewish student does not automatically mean the students who are chanting can be censored. It is possible for someone to have a First Amendment right to participate in a protest, while at the same time, the institution has to do something to help a student who feels targeted by that activity.

Your institution’s guiding star here has to be that no student can be deprived of the value of their educational investment based on an environment toxic toward their race, gender, religion, or national origin or the perception of any of those things. And if a student can reasonably argue that’s the climate, the institution has to respond—but the response doesn’t necessarily have to be punitive or focused on speech.

What other rules should the institution have in place? Presumably, it has “time, place, and manner” restraints on where people can gather, and while generous, they likely prohibit outright living in the outdoor common spaces. There should also be rules against all forms of the “heckler’s veto,” including shouting down or blocking speakers or other organized actions designed to frustrate the ability to engage in peaceful discussion and debate, especially between people with strong opposing viewpoints. FIRE’s College Free Speech Rankings Survey shows that students are becoming increasingly comfortable using their actions to shut down speech. In the 2024 rankings, 45 percent of students said it was at least rarely OK to block other students from attending a speech; a year prior, that was 37 percent. In 2024, 27 percent said violence was at least rarely acceptable to stop a speaker; a year prior, it was 20 percent.

Remember, all these rules have to be viewpoint and content neutral. Viewpoint neutral means the rule doesn’t punish some viewpoints more than others; content neutral means the rule doesn’t discriminate among issues. In a First Amendment context, viewpoint discrimination is outright unconstitutional, and content discrimination is presumptively unconstitutional and requires strict scrutiny from a court, generally meaning a loss for the institution. And in a free speech cultural context, making rules based on someone’s ideas undermines the goal of encouraging the expression of those ideas.

Day One

Imagine that students have started to protest on your campus. Let’s assume they’re protesting you because they think your salary is too high, and they want to take two-thirds of your salary and invest it in food delivery for the protesters.

You realize, of course, that this is untrue; your imaginary salary is entirely in line with both averages across institutions and the value you bring to HypoU. But they’re yelling at you, nonetheless.

A hundred protesters are on the open lawn outside your office, holding signs that read: “TUITION HIKES FOR PAY SPIKES,” “EDUCATION OVER COMPENSATION,” and “OUR DEBT, YOUR PROFIT.”

The First Amendment includes the right to be wrong, because if it didn’t, we’d need to appoint an arbiter of truth.

They chant: “Fund our future, not your salary!” From the window, you see curious families on a campus visit for prospective students looking over at the crowd, worried. The protesters chant loudly enough for you to hear but not loudly enough to interfere with classes, and they leave when it gets dark.

From a First Amendment standpoint, nothing’s wrong here.

“But the students are wrong!” you might well object. But wrong people have First Amendment rights too.

The First Amendment includes the right to be wrong, because if it didn’t, we’d need to appoint an arbiter of truth. That duty would probably fall to Congress, and we’re not sure any of us would trust the result of that process.

Even if we thought that was a good idea, truth is rarely as simple or as binary as we would like, and the process of refining truth means processing through what, eventually, we see as untruth. Truth is a never-ending process of conjecture and refutation, chipping away at falsity to zero in on, but never quite reach, the truth. The diversity of activity on a modern campus reflects the pursuit of truth down every possible corridor, but the institution’s purpose remains the pursuit of truth, and the biggest mistakes begin when we forget that.

“But the protests are in view of the prospective students!” you cry. That’s good—the sooner students understand that a free speech culture involves some amount of discord, the better. Students who come to believe that freedom requires an imposed tranquility are the kind who will expect you to create that tranquility at the expense of individual rights. If someone decides not to go to HypoU based on this protest, that alone might be a sign they aren’t ready to participate in the kind of free speech culture that higher education requires.

So what do you do?

You could try talking to the protesters directly, although the Christakises’ experience at Yale suggests there’s a chance you aren’t dealing with intellectually honest (or capable) brokers. You could send letters to them—you know where they live, after all—and include in those letters data indicating your salary is in line with standard compensation. You could make a video walking students through your day, showing them that the job isn’t easy and involves a lot of work. College presidents are well compensated, but they aren’t the idle rich.

In short, you can try educating them. This is an educational institution, after all, albeit an imaginary one. You won’t convince all of them, but you’ll convince some and introduce all of them to facts that could lead them to question their position in the future. Even if you only succeed in demonstrating that there’s an argument on the other side, that’s progress.

Day Two: Civil Disobedience

But for our hypothetical’s sake, all the wrong things escalate. Now, the students are encamped on the lawn outside your office. How much that changes things depends on your rules. Let’s assume the existing “time, place, and manner” rules don’t prohibit using tents in outdoor spaces but require them to be removed at night.

If you don’t enforce the rules here, you should rescind them, because enforcing them in the future opens the institution to accusations of selective enforcement. If you’ve decided the “time, place, and manner” rules were wrong, then change them. Otherwise, provide adequate notice. Provide due process. And enforce the rules.

Maybe once they’re told that encampments break the rules, the students will say, “Oh! I didn’t realize that. Let me take my banner and my tent, and I’ll just be off, then. See you tomorrow, 9:15 a.m. sharp.” Sure, why not? We live in a world of infinite possibility.

But it’s also possible that some students will not cooperate, and at this point, the crowd is involved in civil disobedience. Erecting encampments contrary to campus rules, occupying a building, or blocking traffic as part of a protest are all forms of civil disobedience.

You’re not the president of social change; you’re the president of a university.

Does that change anything? No, not in the slightest. Civil disobedience is powerful precisely because there are personal stakes to it, and you should still enforce the campus rules. If they won’t move the first time you ask, then ask again. If that doesn’t work, turn the sprinklers on. If that doesn’t work, notify them of the time of their student conduct hearings for breaking the rule against camping in public spaces. If that doesn’t work, tell them the exact time law enforcement will show up to start arrests. And if they’re still there when the police arrive, they should be arrested for trespassing.

Some will be upset, and others will wear their “martyrdom” as a badge of pride on social media. How being arrested helps the cause is a calculus that a free speech culture puts in the hands of the protester, and you don’t have to second-guess that. You’re not the president of social change; you’re the president of a university.

That isn’t the end of your work. You have another opportunity for education, in whatever format you’re most comfortable with—letters, op-eds, television interviews, debates, or even mandatory orientation seminars. You could, in theory, require students to complete additional training to avoid being punished under campus rules. Your job is to explain why a free speech culture doesn’t include violating viewpoint- and content-neutral rules.

We’d start with this: The word “culture” presupposes a society of some form, because to have norms, you have to have a social structure. And those norms have to accommodate the ability to hear other people and live normal lives, or else the society will collapse. If the method of a protest is to interfere with the operation of society, then any culture that values self-preservation, including a free speech culture, has to oppose that method of protest, no matter what viewpoint it expresses. Being on the right side of history is valuable only to societies that make it to the present.

Day Three: Institutional Neutrality

Having been removed from their encampment hasn’t slowed the protests. And now, protesters are calling on you to make a statement of solidarity with their goals of ensuring fair but limited compensation for administrators.

Nevertheless, you shouldn’t make that statement. Instead, you should have a rule against making these statements—an institutional neutrality rule. Institutional neutrality is the idea that higher education institutions should not take institutional positions on things unless they threaten the university’s mission or free inquiry itself.

It’s a wise principle in the abstract; universities should be the venue for ideological fights, not weapons in that fight. But it’s become far more urgent as movements adopt infinitely intersectional agendas, stacked on each other into an ideological tesseract through which you might adopt a position on sardine imports and come to discover you’re unsympathetic to the deforestation of exoplanets. Together, they form an orthodoxy in which the adherents are the Good People and anyone who violates any individual tenet of the faith is a Bad Person. Your response to this generous invitation should be to decline. Note that the appropriate level of compensation for administrators is a matter of legitimate and robust debate and that you would welcome any proposals to host such a debate, perform any research, or even just hold a forum on the topic.

The first time you attempt this, you will be accused of favoritism because HypoU (like every other university) has probably taken public positions on dozens of other debated issues. Before Harvard adopted its institutional neutrality policy, for example, it stood with the people of Ukraine, insisted Congress should make a pathway to citizenship for children of undocumented immigrants, and reminded us that black lives matter when promising to review how police attend protests. And that cynicism is justified in Harvard’s case, which adopted its policy after being criticized for not quite contradicting pro-Palestinian students, activists, and professors in the immediate wake of October 7, in a way that left former institution president Larry Summers feeling “disillusioned and alienated.”

You need to take your lumps here because you (or at least, your school) earned them. But if you adopt this policy and stick to it, the climate will improve, and life will become much easier.

Protest should be protected, of course, but hearing people out through debate and discussion, and trying to learn and grow, can make for an even more powerful collegiate experience and certainly contributes to the discovery of truth. And when that doesn’t happen, and there’s a protest, that’s OK too. Perfection is not the standard, and fortunately for your hypothetical career, the bar has not been set exceptionally high.