[CLIP] Campus Firestorms: What Are the Limits of the 1st Amendment?—Ilya Shapiro

MIT famously uh even after admitting that that that some students violated their rules on blocking access to buildings um but then said oh we're not going to punish those students because a lot of them are foreign and they're here on student visas and it turns out if you punish them for these kinds of uh violations then their V they lose their visas and they have to leave the country and so in effect MIT has created a system where foreign students can harass and intimidate uh but American students can't lots of weird things again going going on from the uneven enforcement of what otherwise are pretty good rules and policies at all of these places Yan I want to tell you neither the laws the criminal laws or the Civil laws federal state nor University policies at most places are to blame for what we're seeing it's their uneven enforcement or non- enforcement well so that's fascinating let's let's go back to free speech for a moment because you've we've kind of explored you know bit what's protected what's not what are some you know let's say exempt iions how policy you know applies where does this sort of intersection of speech and conduct happen because you know harassment this is an area where it might not be obvious for example right and then I wanted just to look at areas where you mentioned one just now where conduct people will say I'm protected through Free Speech but actually what's happening is conduct right so so let's start with harassment when does something become conduct and not speech there has to be targeting of someone or someone's particular individuals uh and there has to be something that's severe and pervasive so you know one cat call down the street probably is not going to be sufficient but if people are following around a student or a group of students and yelling things at them and kind of disturbing their ability to go about their lives or their educations that's harassment or as happened I think on Harvard Yard a bunch of students uh crowded around uh one uh Israeli student or or at least a student with a with an Israeli flag and um we're menacing in there's a State Crime as well as a tort uh called menacing where you're sort of intimidating someone with your physical presence you know looking like you're about to strike them uh for that matter to uh commit the tort of assault you don't have to physically touch someone it's uh a reasonable apprehension of uh you know imminent threat of of of some sort so um it doesn't matter what your motive is whether you have an expressive motive uh or not whether it's based on uh hate whether it's based on anything else um but uh There Are Rules against again vandalism assault uh harassment intimidation menacing all of these different you physical actions that are uh are as much crimes or torts meaning civil wrongs that you can be sued for uh uh regardless of any expressive content to them some common slogans which I've come across globalize the inata some officials have said well that's not a call to violence necessarily the inapa are several campaigns that were initiated by uh yaser Arafat the leader of the Palestinian Liberation Organization that involved suicide bombers on buses and cafes and pizzerias and dayc carees and things like that uh it was extremely violent um uh specifically inata in the Palestinian context is armed violent resistance so someone might be ignorant and not know that but the objective understanding is violence calling for violence so there's one you know statement globalize the inter another one is from The River To The Sea Palestine shall be free of course implication being you know Wipe Out the state of Israel yeah let's be clear on that because in surveys a lot of students who are chanting this apparently don't know this don't know even what river what sea so it's from the Jordan River uh which is the boundary between Israel uh and uh and Jordan the country of Jordan uh to the Mediterranean Sea uh if you wipe that out from the river to the Sea that's going to be all Palestine which means you get rid of Israel get rid of the Jews it's an eliminationist slogan and again many students might not know this but the objective truth of what that means and it comes from the the Arabic translation of what that in in Arabic what they chant is from The River To The Sea uh Palestine will be Arab uh and they translate that for for rhyming purposes in English to say you know from the rivers to see Palestine will be free but the the the objective meaning uh is to get rid of Israel to get rid of the Jews but both both of those are protected they are protected unless in certain context and here Liz Mill was correct in a certain context that loses its protection if you're having those chants uh in front of a Hanukkah service if you're having those chants outside a synagogue or a a Hillel or something like that because that is obviously targeting uh threats of violence doesn't rise to the level of incitement of violence again unless the chance are also and you know when those those people get out of that uh you know synagogue make sure to hit them or something like that um but it can be harassment or intimidation someone might have in mind lots of different things at Yale they famously redefine words so that they mean the opposite of what they actually mean but you can't play these semantic games uh in the law uh sometimes it might be a jury question I suppose but courts can take notice of the objective meaning of of certain words uh and you know the Supreme Court decides the meaning of uh I don't know interstate commerce under the Constitution for for for for right for for definitions of of the scope of federal power uh and so uh I suppose you could have a a mini trial in a district court over uh what the true meaning of all this stuff is uh but you know I've done some research into this and it's uh when you when you look into what it what it means regardless of what any one person might mean it subjectively the the the the general public meaning of these terms are are violent eliminationist so I was just at a an event where a a young woman Hong konger who in DC yesterday the the Hong Kong government has announced a $1 million Hong Kong dollar bounty on her head it's for for speech and and organizing and things like that but one thing that she said was that there was a student on her campus um where that actually issued a death threat towards her and from what she could tell there really were no repercussions the student graduated um and so so in a situation like that right presumably there's school policy that applies here but it's also I don't think I don't think death threats are protected that's right that's right if it's a true credible threat as in like they said it is that an effort to be a true credible threat if I mean I don't know the facts of this specific case but there's you know it's it's a it's a certain legal bar that you have to say that you know this happened with people who threaten the lives of public officials from time to time and they get they get uh visited by the FBI and often arrested and like I said this uh this Cornell student uh about a month ago uh who was issuing threats and got arrested uh because they were seen as uh you know credible and understanding what the words meant and yet you wrote them and this has gone to the Supreme Court do you actually have to have in your mind the idea that you're K going to kill someone well if that person uh objectively and reasonably fears that based on what you said that you're a threat to them then that's a true threat well okay so in other words I say to someone I'm going to kill you right now of course in this case there's a sort of the weight of a regime known to be committing genocide kind of behind it so I think that adds a bit of weight I suppose or does it I I think it does I mean again it depends on the context it's like well is let's say the student had posted well I was wavering about this but now that there's a you know a reward for going after this other person I'm definitely going to go get her but it's a matter of criminal law it's not just school policy making death threats credible death threats is illegal it's a crime another example of what incitement of violence might be or an exception to the protections uh if you recall back in October there was a rally or a or or a parade a protest uh in Los Angeles and they were chanting you know from The River To The Sea all these slogans and uh a gentleman with a with an Israeli flag uh was killed he was struck uh it turns out was a I think a community college professor who struck him with a megaphone and that man fell and and further hit his head and ended up dying uh there's no video I think of the chance but it could well be that some of that speech was uh inciting the that kind of violence but has only become that way once we know what was done with it I mean this is like how can someone possibly know that what will happen after they say because the protections are pretty strong right you have to be saying go after that person right now basically if I understand it correctly well who again we don't know specifically what was chanted if if you know if if that if there's a witness who says well I heard you know the folks that are around this this guy who ultimately you know used the megaphone to to to hit this other man uh the folks around there were saying you know let's uh let's go after anybody with an Israeli flag or oh look that guy has an Israeli flag that might be enough at that point