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An Unusually Tricky Campus Free-Speech Fight

Late last month, the chancellor of Florida’s university system, acting in consultation with Governor Ron DeSantis, ordered state universities to deactivate all local chapters of Students for Justice in Palestine.

How could dissolving student groups be lawful, given constitutional protections for free speech and freedom of association? Although multiple local SJP chapters acted as apologists for the murders of Israeli civilians or stood in solidarity with the Hamas militants who killed and kidnapped children, even viewpoints that deplorable are entitled to First Amendment protection.

But Florida says it is not targeting the protected speech of these groups. It is acting, instead, because the national SJP has run afoul of a state law against providing “material support” to a terrorist organization. Many people associate such laws with providing money, weapons, a safe house, or fake passports to terrorists. But material-support statutes can also render speech and advocacy that would otherwise be protected by the First Amendment unlawful. For example, Americans are free to post “Hurray for Hamas!” on social media. Yet an American could not coordinate with Hamas to draft and post “Hurray for Hamas!” as part of a marketing strategy.

Critics of DeSantis may see another instance of the governor picking an opportunistic fight with the campus left for political gain. I certainly do. Florida has deactivated local SJP chapters without providing proof of unlawful behavior on their part, illustrating how these laws can enable state overreach. Officials should refrain from making “material support” accusations targeting political advocacy except in the most clear-cut cases, so that no constitutionally protected speech will even be chilled, let alone silenced.

But legally, this is unlike most campus-speech fights. SJP could run afoul of state and federal statutes for any speech offered in coordination with Hamas. So far, Florida has not proved unlawfulness. There’s no indication “that any action from Florida’s Students for Justice in Palestine groups went beyond expression fully protected by the First Amendment,” the Foundation for Individual Rights and Expression said in a statement. That is consistent with what other experts told me. But it fails to capture how SJP could actually lose a legal fight, part because of rhetoric that will cause headaches for any lawyer that they hire.

Two legal questions are at stake here:

  1. Did the national organization Students for Justice in Palestine actually violate Florida’s “material support” statute in a way that would stand up to First Amendment scrutiny?
  2. If so, what does that mean for local chapters?

Florida laid out its theory in an October 24 letter sent to all college presidents in its higher-education system. After noting the October 7 attack, Chancellor Ray Rodrigues explained:

Hamas is responsible for this attack and claims it as “Operation Al-Aqsa Flood.” In the wake of this terror, military leaders of Hamas have called for the mobilization of Palestinians in support of the Operation. In response, and leading up to a “Day of Resistance,” the National Students for Justice in Palestine released a “toolkit” which refers to Operation Al-Aqsa Flood as “the resistance” and unequivocally states: “Palestinian students in exile are PART of this movement, not in solidarity with this movement.”

According to Rodrigues, that “toolkit” shows that SJP “has affirmatively identified it is part of the Operation Al-Aqsa Flood—a terrorist led attack,” and that it is knowingly providing material support to Hamas, a felony.

To evaluate that theory, it’s necessary to look at Florida’s “material support” statute, at federal case law on “material support” and its relationship to the First Amendment, and at the Day of Resistance Toolkit.

The Florida law defines the felony of “material support or resource” for a terrorist organization as follows: “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation.”

No one has alleged that Students for Justice in Palestine provided property, financial support, lodging, training, expert advice, safe houses, documents, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation to Hamas. What’s more, consistent with the First Amendment, the statute rules out convicting those who merely give independent rhetorical support to a terrorist organization.

That leaves the question of whether SJP acted in a way that wasn’t entirely independent of Hamas. Did it coordinate to provide Hamas with any “service”? What constitutes a service?

I asked the Foundation for Individual Rights and Expresion (which goes by FIRE), the ACLU, and the UCLA professor Eugene Volokh (who specializes in free-speech law), and they agreed that a controlling precedent in such cases is Humanitarian Law Project v. Holder. This 2010 U.S. Supreme Court case interprets a federal material-support statute with similar wording and describes what prohibitions would pass First Amendment muster. The Court understood service to be defined in such a way that did not prohibit “any independent advocacy in which plaintiffs wish to engage.” But, the ruling continues, “a person of ordinary intelligence would understand the term ‘service’ to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”

Because Florida cited the Day of Resistance Toolkit as evidence, let’s turn to the toolkit itself. Could the state prove that the toolkit shows advocacy performed “in coordination with or at the direction of” Hamas?

The toolkit starts by saying, “National Students for Justice in Palestine is calling for a national day of resistance on college campuses.” It approvingly notes, “The resistance in Gaza launched a surprise operation against the Zionist enemy.” (The baby-killing and kidnapping of civilians on that day go unmentioned.) The toolkit adds, “In the West Bank, the Palestinian resistance has called for collective action by the Palestinian masses.” Specifically, “the Palestinian resistance has called for mass protests in every Palestinian city, and Palestinian workers have called for a general strike.” The document then states, “As the Palestinian student movement, we have an unshakable responsibility to join the call for mass mobilization.”

What exactly is this “resistance” that the toolkit references? Who specifically called for mass mobilization? Lawyers for Chancellor Rodrigues would perhaps argue that “the resistance” is synonymous with Hamas, and would conclude that SJP is explicitly characterizing its activist actions as supporting Hamas.

Students for Justice in Palestine’s lawyers would perhaps counter that “the resistance” refers to the entire global movement for Palestine, not to Hamas, which is not mentioned by name in the document. It might add that the toolkit dates the beginning of “the resistance” to long before Hamas’s founding, and that the call for collective action in the document is described as coming from the West Bank, where Hamas does not rule. Do the authors of the toolkit see themselves as providing advocacy in coordination with Hamas? The toolkit is open to multiple plausible interpretations. For example, perhaps its authors are cosplaying as radicals by exaggerating their involvement in a faraway conflict, or perhaps they sincerely intend to advance Hamas’s cause. (No one at SJP responded to my interview requests.)

Should Florida go to court to defend Rodrigues’s actions, I expect the state might highlight two additional toolkit passages. The first passage explicitly characterizes activism that challenges media narratives as one way to champion people in Palestine:

Our responsibility is to not only support, but struggle alongside our people back home. The forces of Zionism engage in media campaigns which attack our people and resistance from all sides—it is our responsibility, therefore, to break through their hegemonic narratives of “war” and “unprovoked aggression,” and instead ground our campuses and communities in a narrative which centers the legitimacy of resistance and the necessity of complete liberation.

The second passage characterizes SJP as part of a unified group of factions that, logically speaking, at least includes Hamas and that “appear” to be working “under unified command.” It states:

Unity Intifada

  • The revolution is being waged across historic Palestine—not just cross-factional, but unifying our people in the name of resistance
  • All Palestinian factions in Gaza appear to be participating under unified command.

Later, the sentence that Rodrigues quoted, “We as Palestinian students in exile are PART of this movement, not in solidarity with this movement,” appears, followed by the statement, “This is a moment of mobilization for all Palestinians. We must act as part of this movement. All of our efforts continue the work and resistance of Palestinians on the ground.” The declaration that SJP is united with Israel’s attackers, rather than a faction that is merely allied with them, seemingly cuts against claims of uncoordinated or independent advocacy.

Elsewhere, the toolkit offers hashtags, template graphics, and other resources––all of which clearly qualify as protected speech, unless they are a “service” to Hamas (which is to say, coordinated with Hamas) and thus fall under Florida’s material-support statute.

I asked Volokh a hypothetical: If Students for Justice in Palestine performed advocacy at the direction of an international “resistance” coalition that includes Hamas, but that is not led by or limited to Hamas, where would that leave them legally? Is speech protected if it is made as part of a coalition that includes but is not limited to a terrorist organization?

Volokh likened the question to cases involving conspiracies, coordinated campaign contributions, and similar situations where separate actions may be lawful but coordinated actions aren’t. “If you spend $100,000 to buy ads to support a federal candidate, that’s a constitutionally protected independent expenditure,” he wrote in an email. “But if you coordinate with the candidate’s campaign, through some sorts of direct interactions, then it’s a coordinated expenditure and thus a form of campaign contribution, well in excess of the federal contribution limit.”

He then offered another example: “If you see the police coming somewhere where you know criminals are operating, and shout ‘The police are here!,’ that’s at worst aiding and abetting; but if you’re working with the criminals, you’re guilty of criminal conspiracy.”

So if Students for Justice in Palestine were to read news of the attacks in Israel and ask themselves, What can we do to support Hamas?, and make that decision without coordinating with Hamas or any groups that are coordinating with Hamas, speech in service of that end would be lawful. But if they understood that they are operating at the direction of Hamas, or that they are coordinating with Hamas through an intermediary, the same speech could be unlawful.

“Endorsements of Hamas or its actions that are entirely independent of it aren’t covered by the law, and are likely protected by the First Amendment, as Humanitarian Law Project suggested,” Volokh wrote.

And even if it turned out that the national SJP organization did coordinate with Hamas, that wouldn’t necessarily implicate every far-flung chapter. It may be that the Florida chapters can’t be derecognized “simply because of the action of SJP National,” Volokh wrote, “absent some sign they are working with it.” Florida officials have released no evidence of such coordination.

The national toolkit does encourage local chapters to coordinate with the national organization. Among other things, it urged, “JOIN THE DAY OF RESISTANCE NATIONAL CALL-IN MEETING.” It seems unlikely that a Hamas member was on that call––no one has alleged otherwise––but hypothetically, a call that included both a Hamas representative and Florida chapter heads, or a call where national organizers relayed instructions from Hamas to local chapter heads, would be the sort of event that could render subsequent advocacy unlawful. Because the chancellor’s letter states that Florida’s SJP chapters can form a new organization that does not violate state law, and recommends that any such organization be allowed to operate, I’d be surprised if he has evidence that Florida chapters were coordinating with Hamas.

In the past couple of weeks, I’ve encountered a lot of admirable people working to champion the equal worth and rights of Palestinians. The Palestinian people deserve advocates of that caliber to represent them on college campuses. They deserve better than Students for Justice in Palestine and their apologias for Hamas (an oppressor of Palestinians) and its atrocities against Israel.

Nevertheless, safeguarding the free-speech rights of SJP is important. As the ACLU has put it, “Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you.” Of course, critics of SJP could reasonably argue that although its free-speech rights should be protected, no matter how odious its viewpoints, material support for an organization like Hamas would cross a line.

Helping a terrorist organization carry out an attack should certainly be illegal. I think prohibitions against sending money to terrorist organizations are generally prudent too, even though I worry about whether the government can be trusted to decide which organizations to designate. But I think America would be better off if its material-support laws carved out mere speech that would otherwise be protected, or at least defined coordination clearly and narrowly.

I would prefer that the worst ideas harbored by Students for Justice in Palestine be aired and defeated, not suppressed, regardless of what Hamas wants. More broadly, criminalizing or seeming to criminalize either side of the Israel-Palestine debate would be a disaster for the United States. Its most immediate effect would be further radicalization, not mediation. In the long run, it would create competition among many factions in many sorts of conflicts to officially designate more entities as terrorists as a tactic to chill political speech and other activism.

Laying out all the details of this matter forces everyone evaluating Florida’s actions to examine the appalling ways that SJP asserts solidarity with what Hamas did on October 7. So I understand why Governor DeSantis might conclude that picking this fight will be a political win, even if Florida’s SJP chapters prevail in court. But Florida’s approach is bad for the country, and in a perverse way, good for Students for Justice in Palestine—allowing the group to make news as a free-speech victim when it was making news as a war-crime apologist.

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