Protesting on College Campuses: FAQs Answered

Protestors wave Israeli and Palestinian flags during a demonstration against the Israel-Hamas war at George Washington University.

By Freedom Forum

Thousands of students across the country are protesting at universities large and small over the war between Israel and Hamas.

From Austin, Texas, to Ann Arbor, Michigan; from Atlanta to Los Angeles; from New York to Boston and Nashville, student activism is raising questions about actions and speech that are protected by the First Amendment. Some schools have gone to online classes and canceled graduations citing concern for student safety.

But when do protests move past First Amendment protection? What is — and isn’t — allowed when it comes to protesting on college campuses? Here’s everything to know.

FAQs about protesting on college campuses and the First Amendment

Is there a difference between public and private colleges when it comes to First Amendment rights?

Yes. Students at public colleges and universities are protected by the First Amendment freedoms of religion, speech, press, assembly and petition. But private schools – like private employers – are not bound by the First Amendment and often have their own guidelines that can limit students’ speech and behavior. That would include rules about protests on campus. Some private schools may be required to follow the strict requirements of the First Amendment, either because state law applies the First Amendment to private institutions (as California does) or because the school has adopted it in its own rules or policies.

Police stand in riot gear as demonstrators chant outside the Columbia University campus.

Police stand in riot gear as demonstrators chant outside the Columbia University campus on April 18, 2024.

RELATED: The complete guide to free speech on college campuses

How can universities balance fulfilling their educational missions, ensuring student safety and protecting First Amendment freedoms?

Institutions of higher learning have long struggled with the mission to educate students and expand and challenge their thinking while also maintaining safety and civility on their campuses. In addition to ensuring that the learning process occurs, federal laws – most notably Title VI of the Civil Rights Act – require universities to provide a safe learning environment for all students free of discrimination and harassment. Universities must ensure, for instance, that students can get to class without being physically blocked by protesters and can focus on their studies while in the classroom. They also must make sure that students of all races, colors and national origins do not feel threatened or unsafe on campus.

Can students be arrested for the simple act of protest?

Peaceful protest is protected by the First Amendment’s freedoms of speech, assembly and petition. But speech must be differentiated from conduct. The First Amendment does not protect conduct such as vandalism, trespassing, violence and illegal harassment that violates Title VI of the Civil Rights Act. In addition, certain types of speech are not protected by the First Amendment, including incitement to imminent lawless violence, true threats and fighting words. Finally, universities can limit the time, place and manner of protests, as long as those limits aren’t intended to stop the protest entirely and are applied to all viewpoints equally.

Police officers arresting protestor

Police arrest demonstrators at the University of Utah on April 29, 2024.

Can campuses limit the content of the speech that students are permitted to express?

Speech cannot be limited because administrators disagree with the message. All viewpoints must be treated equally. University officials can only limit or punish speech that falls into categories that are not protected by the First Amendment. Universities can also impose limitations based on factors unrelated to the content of the speech, such as when the protest occurs, where it is occurring, and the noise levels, as well as the need to address specific and identifiable safety concerns.

Can non-students be prevented from joining on-campus protests?

When it comes to a private college or university, the answer is simple: Unless the institution is bound to the First Amendment by state law or its own rules, it can restrict access to outsiders in full or in part for any reason at any time without violating the First Amendment.

Public colleges and universities (and private colleges and universities that follow the First Amendment for reasons described above) are more complicated. These institutions can also limit access to people who are not part of the school community, but under more limited circumstances. While they can always ask trespassers to leave, a person who intends to enter campus to exercise First Amendment rights presents a different issue.

Public colleges and universities are likely to be considered either nonpublic forums or limited-purpose public forums for purposes of the First Amendment. These are both examples of places that are only open to the public for free speech purposes when the government allows it. That means the government can also restrict access consistent with the First Amendment if there's a reasonable reason for doing so, particularly if the reason is unrelated to what the person wants to say, and the restriction is applied to all speakers regardless of viewpoint. Actual threats to campus safety and to students' and faculty's ability to get to class would qualify.

Is hate speech protected by the First Amendment?

Yes, speech that is offensive, hurtful, hateful and even outright racist is protected by the First Amendment, unless it falls into some other unprotected category, such as incitement to imminent lawless violence, true threats or fighting words.

Is occupying campus buildings permitted under the First Amendment?

No. While viewed by many as an act of civil disobedience, it does constitute trespassing, which is conduct that is not protected by the First Amendment.

Can students pitch encampments as an act of protest on campus grounds?

The First Amendment does not protect camping or creating an encampment in public spaces. University officials have the right to regulate large – especially permanent or semi-permanent – gatherings of this type if they can demonstrate that it is necessary for reasons unrelated to the protestors’ message. The most common justifications are the need to provide clear access for students and educators to move about campus and get to class and to manage campus safety and security resources.

Pro-Palestine encampment with counter-protestor waving Israel flag

A protestor leads a chant as a counter-protester waves a flag of Israel at a pro-Palestinian encampment on the University of Washington campus on April 29, 2024.

Is civil disobedience protected by the First Amendment?

Technically, no. Civil disobedience refers to intentionally breaking laws to bring attention to a cause you believe in. It comes with consequences, including the possibility of arrest. For instance, many people have drawn attention to a cause by blocking roads or highways, which is not protected by the First Amendment and often results in protesters being arrested.

Can college presidents call in police to stop protests?

Protesters who engage in conduct or speech that falls outside the First Amendment can be arrested. A protest that has or will result in violence or vandalism or otherwise exceeds the protections of the First Amendment could be shut down entirely.

Can students film law enforcement officers who are called in?

Yes, this is protected by the First Amendment right to freedom of the press. But there are limits. Students cannot interfere with law enforcement officers doing their job but can film from a reasonable distance.

Police move demonstrators back from the grounds of the University of Virginia.

Police move demonstrators back from the grounds of the University of Virginia, where tents are set up, on May 4, 2024. Photo: Associated Press

RELATED: Everything to know about recording in public

Does the First Amendment support the right for counter-protesters to shout down invited speakers?

No. Events with an invited speaker often take place in what is called a “non-public forum.” This is a space that has been opened for a particular purpose: to hear an invited speaker. Anyone who disrupts a speaker or event can be removed if necessary to ensure the speaker is heard and that all counter-protesters are dealt with equally.

Can students disrupt private gatherings, such as a party at a professor’s off-campus home, with their protest messages?

Generally, no. Private homes are just that. A person’s private home is not government or public property. The First Amendment applies only to the latter.

Can a public university remove a graduation speaker because of fears about what they will say?

Not unless the speaker engages in speech that is outside the protection of the First Amendment or the university has a specific belief that the speaker will engage in speech that’s not protected by the First Amendment. Speculative fears are not enough to remove a speaker. Finally, the university should not remove a speaker based solely on fears of how an audience or the public may react. This is known as the heckler’s veto. Of course, a private university can remove a graduation speaker unless state law or its own rules and policies bind it to the First Amendment.

RELATED: Eight controversial commencement speakers throughout history

Can a public university cancel graduation entirely because of fear that the event will be disrupted?

Only as a last resort to avoid violence. Otherwise, the university must do everything it can to provide security necessary to allow the graduation ceremony to go forward and graduation speakers to be heard. Again, this rule would be different at a private university, which could take such action unless state law or its own rules apply First Amendment standards.

A graduate holds his cap with an Israeli flag during the University of Michigan's Commencement Ceremony on May 4, 2024.

A graduate holds his cap with an Israeli flag during the University of Michigan's Commencement Ceremony on May 4, 2024. Photo: Associated Press

Can schools punish students by withholding degrees for legal acts of protest?

No, not if they are legal acts of protest on a public university or at a private university where the First Amendment applies via state law or the university’s own rules.

What protections do journalists have when covering protests?

Freedom of the press protects journalists who are covering protests in public spaces, including those on public university campuses. However, journalists can be removed from private campuses or face being arrested for trespassing. While covering protests, journalists have a right to take photographs, film and record in public spaces.

Where can I learn more about how to stay safe when protesting?

The ACLU and the Human Rights Campaign have information on how protesters can exercise their freedoms safely. For journalists and student journalists, the Reporters Committee for Freedom of the Press and the Student Press Law Center offer resources.

This report is compiled by Freedom Forum’s First Amendment Specialist Kevin Goldberg and draws upon scholarship by Freedom Forum experts.

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