Editor’s Note: This article was originally published by Liberty Unyielding on May 4, 2024 and is crossposted here with permission.
You have a right to free speech, but that doesn’t give you a First Amendment right to camp out on my lawn with protest signs. That’s trespassing. But government officials sometimes allow trespassing when they sympathize with the trespasser’s viewpoint. The Democratic-run cities of Baltimore, Philadelphia, and Washington, DC have refused to remove progressive anti-Israel protesters camping out at private universities — Johns Hopkins University, the University of Pennsylvania, and George Washington University.
Law professor David Bernstein notes that “Baltimore police will not assist in removing illegal encampment at Johns Hopkins University. Worse, they actually praise the illegal encampment as a valid exercise of First Amendment rights, which is complete nonsense. It’s especially nonsensical because most of the protesters are trespassers with no connection to the university.” “The City of Baltimore strongly stands with every person’s First Amendment rights. Barring any credible threat of violence or similarly high threshold to protect public safety, BPD currently has no plans to engage solely to shut down this valid protest or remove protesters,” said the Baltimore police department in a statement apparently dictated by the mayor’s office. As Professor Bernstein observes,”it’s not the police that are the problem, but the mayor, who has ordered the police to stand down in deference to his primary on Tuesday.”
Contrary to what this statement claims, there is no “First Amendment” right to camp out on public property, much less private property like the campus of Johns Hopkins University, which can tell trespassers to leave regardless of whether they are engaged in First Amendment activity. Camping out on someone else’s property is not a “valid protest,” even if the protesters have not yet made any “threat of violence.” The Supreme Court ruled that protesters do not have a right to camp out even on public property devoted to public use, like national parks, in Clark v. Community for Creative Non-Violence (1984).
Yet Neetu Arnold of the National Association of Scholars notes that Philadelphia is similarly refusing to clear out a protest camp at the University of Pennsylvania, a private Ivy League university: “Philadelphia Police ignores Penn’s request to disband unauthorized encampment. The university has to provide proof that the encampment poses an imminent danger. Penn students have received multiple warnings to avoid the immediate area.” The Daily Pennsylvanian reports that the “Philadelphia Police Department declines to disband encampment after Penn requests immediate help.”
As a University of Pennsylvania alumnus notes, these illegal protests are only being allowed by progressive officials because of the viewpoint they are expressing. If the protesters were “white nationalists waving nazi flags and telling black people they should go back to Africa I’m sure [police] would be out there pretty quickly” to remove them.
As Professor Bernstein observes, allowing the illegal encampment at Johns Hopkins to persist despite the university’s objections is a bad idea: “This one poses a special danger to public safety because, I’m told by a reliable source, ‘almost none’ of the people manning the encampment are Hopkins students. They are professional agitators from ‘the community.’”
No city would tolerate such trespassing if the protesters’ ideology were different — such as if they were white nationalists, whose speech is protected by the First Amendment despite their repellent ideology. (The Supreme Court ruled in favor of a First Amendment lawsuit by white nationalists in 1992, because even racist protests are protected by the First Amendment, see Forsyth County v. Nationalist Movement (1992). Even on campus, racist speech such as Nazi meetings can be protected, see National Socialist White People’s Party v. Ringers (1973)).
But in practice, white nationalist speech — or even speech that is wrongly perceived as white nationalism — not only results in campus discipline, but also results in police investigations, even when such speech does not violate any law or involve trespassing on college property or interfere with college operations.
This favoritism by progressive cities violates the First Amendment. According to the Supreme Court, the government cannot favor certain kinds of protests over others. (See Police Department v. Mosley (1972)).
Left-wing protesters are being treated much better than right-wing oddballs who got kicked off campus or investigated by police, even when they didn’t make much noise or interfere with college operations. The black podcaster Coleman Hughes points to one example of the banning from campus of a silly white student who said things like “I don’t hate other people. I just love white men” and “white people are the best…”
Multiple colleges — including a state university — got the police to investigate after people posted flyers saying “It’s OK to Be White” or “Huzzah for Dixie,” even though such speech was protected by the First Amendment under court rulings like Levin v. Harleston (1992) and Iota Xi Chapter v. George Mason University (1993), as law professors like Eugene Volokh noted.
The president of Western Connecticut State University threatened the unknown persons who posted flyers saying “It’s OK to Be White”, saying that they would face the “severest disciplinary actions, including dismissal as well as possible civil and criminal actions.” The university said its officials immediately reported the flyers to local and state police and the FBI office in New Haven, all of whom were investigating who made the flyers.
When someone posted non-threatening confederate-flag flyers saying “Huzzah for Dixie” at American University in 2017, the local FBI office investigated the flyers as if the First Amendment did not exist, at the request of the university. Law enforcement investigated the speech, even though courts in Washington, DC had ruled that far worse, blatantly racist speech was protected by the First Amendment. (See, e.g., United States v. Popa (1999)).
Yet now, DC police are refusing to remove trespassing students camped out on the grounds of George Washington University. As the National Review reported on April 28:
Police in Washington, D.C., rejected requests from campus officials at George Washington University to clear anti-Israel protesters from their campus encampment this week, fearing that doing so could be bad publicity.
Although police were poised to disband the encampment at around 3 a.m. on Friday morning, city officials in the police chief’s and mayor’s office told police to stand down and said that it would look bad publicly for police to disrupt a “small number of peaceful protesters,” the Washington Post reported on Friday…George Washington officials originally wanted to clear the encampment by 7 p.m. on Thursday. The school said on Friday that protesters “violated several university policies and were trespassing” and added that “any student who remains in University Yard may be placed on temporary suspension and administratively barred from campus. Several students have already been notified of their suspensions.” Police who reportedly lined the encampment’s perimeter on Friday warned protesters that they would soon issue arrests, but they never did.
“After demonstrators refused multiple instructions to relocate, GWPD requested additional support from the DC Metropolitan Police to ensure the safety and security of all our community members through a measured and orderly approach,” George Washington said in a statement….Dozens of anti-Israel protesters are still occupying the encampment…At a rally held at George Washington this week, a speaker was recorded saying, “There’s only one solution, intifada revolution. We must have a revolution so we can have a socialist reconstruction of the United States of America.”
At the protesters’ encampment, they held a “People’s Tribunal” where they put George Washington University President Ellen Granberg, Provost Christopher Bracey, and the Board of Trustees on trial. The students wanted “to hang their provost and chop the heads off of the Board of Trustees”, saying things like, “Guillotine, Guillotine, Guillotine, Guillotine”, “Bracey, Bracey, we see you. You assault students too. Off to the motherfucking gallows with you”, and “I am sending her [to the guillotine], her and her fuckass bob.”
After Republican members of Congress criticized Washington, DC for allowing the illegal encampment “to continue” for over a week, the city issued a statement yesterday saying that “we allow people the opportunity to have freedom of speech.” But obviously, the city would not allow people to engage in “freedom of speech” on someone else’s property if they expressed a viewpoint offensive to the city, such as a Trump rally, or a rally by reactionaries waving the confederate flag. Depictions of the confederate flag are protected speech, according to a court ruling, but that didn’t stop law enforcement in DC from launching an investigation in response to a few confederate-flag flyers posted at American University.
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Isn’t this EXACTLY the problem we once had with Southern Sheriffs refusing to enforce the law when the Klan victimized Blacks?