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Do students and faculty facing arrest at protests have First Amendment Rights?


Wave of arrests this past week has done little to curb pro-Palestinian campus protests.


UNIDENTIFIED PEOPLE: (Chanting) Shame on you. Shame on you. Shame on you.

UNIDENTIFIED OFFICER: Attention. You are under arrest for federal (ph) trespass.

RASCOE: Students and others demanding that colleges and universities cut all ties with Israel over the country's treatment of Palestinians say the police crackdown violates their First Amendment rights. But school administrators insist that they're trying to ensure the safety and security of all members of their campus communities. So what are the rights of campus protesters? To help answer that question, we turn now to Sarah Ludington. She's the director of the First Amendment Clinic at the Duke University School of Law. Welcome to the program.

SARAH LUDINGTON: Thanks so much, Ayesha.

RASCOE: So I want to start by asking you, is there anything that stands out to you about this recent wave of protests on college campuses compared to protests in years past?

LUDINGTON: Well, one thing that really stands out to me is the intensity of the external pressures that we're seeing on universities. And we've seen it in a few different ways. Congress has been hauling presidents of major universities in front of congressional committees to grill them. There's been pressure from donors to universities. And other groups have, for example, been doxxing students who are involved in the protests. And this, to me, feels, you know, sort of ratcheted up to a different level from protests we've seen in the recent past.

RASCOE: Let's talk through the rights of the students and faculty who are staging these protests. I understand there are differences based on whether the college is publicly or privately funded, right?

LUDINGTON: Indeed. So at a public university, because a public university is an arm of the state, the free speech policies have to conform to the U.S. Constitution. So faculty and students have the same rights to protest as they do anywhere else, with one important limitation, which is that the university also has the ability to regulate speech so that the protests don't interfere with or interrupt the other activities of the university, including, you know, students being able to get into buildings to go to class, being able to enter and exit their dorms. But a public university does not have the right to regulate the content of the speech of faculty and protesters.

RASCOE: Well, what about privately funded universities?

LUDINGTON: Well, privately funded universities have the ability to do so to an extent, but I would argue that they shouldn't. You know, the foundational role of any major university, research university is to seek, advance and disseminate knowledge. And to serve this purpose, any university really has to promote a culture of academic freedom.

RASCOE: We've watched as college administrators have called in local law enforcement to break up protests. Like, what are your thoughts on these moves?

LUDINGTON: Well, I think it's never a good look when a college is calling the police to arrest its students. That's a tough move. On the other hand, you know, I have a lot of sympathy for university presidents. And I think they have very real concerns about the safety of students. Back in 2016 and 2017, we saw a certain amount of protests surrounding controversial speakers. And those protests got out of hand and, in some cases, resulted in violence. And I think that's very much in the mind of university administrators.

RASCOE: Often, colleges have a code of conduct, which, you know, if a student violates it, it can lead to disciplinary action. Can you talk to us about the difference between conduct and speech?

LUDINGTON: Sure. And that's a tricky line to draw. Hate speech is protected speech under the First Amendment. On the other hand, some kinds of speech that are pervasive, targeted and repeated and directed at particular people can amount to harassment, which can be punishable under federal laws. But, you know, a university can do a lot of things short of bringing harassment claims. And they absolutely should bring harassment actions against students whose speech or faculty whose speech amounts to unlawful conduct.

Universities can take proactive steps, for example, in educating their community about what civil discourse looks like, what civil protest looks like. And if students are gathering on campus and delivering hateful messages, universities can absolutely speak out against that message of hate.

RASCOE: That's Sarah Ludington, director of the First Amendment Clinic at the Duke University School of Law. Thank you for being with us.

LUDINGTON: Thanks, Ayesha. I really appreciate it. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.