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Did Penn just squash free speech rights to avoid more pro-Palestinian protests?

Penn’s new “events and demonstrations” policy appears to be a response to pro-Palestinian protests and encampments that resulted in arrests earlier this year.
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Over the last academic year, the University of Pennsylvania has experienced fierce protests, congressional hearings, and outcry from students, faculty, and donors that resulted in the shortest tenure of a president in the history of the private, Ivy League university. Now, in the shadow of that turmoil, Penn seems prepared to abandon its storied commitment to free expression. 

FIRE has spent months raising concerns about universities changing policies to punish protected expression in response to the widespread, Israel/Hamas-related campus protests throughout the last academic year. We’ve urged schools to meet calls for censorship with the opposite: more speech. An important start is securing student’s expressive rights. We’ve also explained that, except in rare circumstances, generalized advocacy of genocide or violence remains protected speech under First Amendment standards. It is precisely those sorts of principles that Penn claims to cherish, promising: “the freedom to hear, express, and debate various views; and the freedom to voice criticism of existing practices and values are fundamental rights that must be upheld and practiced by the University in a free society.”

Despite this, Penn adopted new protest rules last week that brush aside these important principles, along with its own historical commitment to free expression. 

Penn’s new policy, Temporary Standards and Procedures for Campus Events and Demonstrations, touches on a variety of issues related to campus events and demonstrations. Among the most significant provisions are an explicit ban on “encampments and overnight demonstrations . . . in any University location, regardless of space (indoor or outdoor)” and a prohibition on any demonstrations that “advocate violence.” 

The first of these provisions appears to be a direct response to the months-long protests that have sprung up at universities across the country. As we’ve written before , under most circumstances, universities may adopt policies that place restrictions on the use of amplified sound, overnight protests, and camping — so long as the rules governing when, where, and how people protest constitute reasonable time, place, and manner restrictions. However, these rules must also be content neutral, meaning that on their face, and as used, they’re applied evenly regardless of the substance of the speech, and they must be viewpoint neutral as well. 

Yet Penn’s new rule raises viewpoint discrimination concerns because it’s reportedly the first formal policy Penn has ever adopted prohibiting encampments, and it comes less than a month after police cleared away a pro-Palestinian encampment at Penn, arresting 33 people.

The timing of adoption of such policies can call into question their neutrality. As we wrote to Indiana University administrators last month when they revised IU’s “Outdoor Spaces” policy overnight to restrict signage and tents on grounds in anticipation of a student-planned Gaza solidarity protest, just as policies cannot be selectively enforced based on a speaker’s viewpoint, “rules cannot be enacted to target a particular viewpoint.” 

To be sure, the timing of Penn’s new prohibition on encampments is not as egregious as IU’s, but it is still worthy of scrutiny, and FIRE will be watching carefully to ensure Penn lives up to its stated commitment to free expression, applying its policies evenly. 

Penn adopted new protest rules last week that brush aside these important principles, along with its own historical commitment to free expression. 

Perhaps even more concerning, Penn’s new rules empower the university to shut down student demonstrations, and students may be subject to investigation and disciplinary proceedings, if they “advocate violence.” The rules make clear this ban is different from existing — and appropriate — rules against threatening or creating violence, or harassing or intimidating “Penn-affiliated individuals or groups.”

While the university is within its rights, and is in fact obligated to prohibit unlawful behavior, advocacy of violence is categorically different from truly threatening or actually committing violence. Notably, it is protected by First Amendment standards so long as it doesn’t cross the line into unprotected conduct or speech like incitement or true threats (at which point it would fall into one of the categories Penn’s rules already prohibit). 

As FIRE’s Aaron Terr wrote in December: 

The First Amendment protects advocacy of violence, so long as it doesn’t cross the line into unprotected conduct or speech like incitement or true threats. These narrow, well-defined exceptions protect individuals from immediate threats to their physical safety, without risking a widespread crackdown on dissenting or unpopular speech.

Penn’s policy fails to explicitly define what it means to “advocate violence” and provides no examples of expression that might violate the policy. In addition, because it is listed among other prohibitions, such as those on threats, harassment, and intimidation, it can only be read as targeting expression that does not fall into one of those categories of unprotected conduct. 

Moreover, because the policy is so vague and so broad, it’s ripe for administrative abuse and uneven enforcement. Some say chanting, “From the river to the sea,” is a call for genocide. Others say expressing support for Israel’s ongoing military conduct is akin to supporting genocide. Penn’s new rules invite arbitrary and viewpoint-discriminatory administrative enforcement. As FIRE has written on this matter before, “Do you honestly believe this rule won’t be weaponized to ban an Israeli cabinet official from speaking at Penn? An Israeli Defense Force soldier? The power to censor always invites abuse and never stays cabined.”

Ultimately, it is difficult to read this policy outside the broader context of Penn’s efforts to respond to the question asked of then-President Liz Magill at the congressional hearing last October, contributing to a wave of backlash that culminated in her resignation. Does “calling for the genocide of Jews” violate university policy? When she responded that it depends on the context of the utterance, many were outraged. As we wrote at the time:

[O]ne can understand the frustration of critics who rightly observe how quickly college administrators — including those at Harvard, Penn, and MIT — will reach for speech codes when certain disfavored views are expressed, yet don the cloak of free speech when they are more sympathetic to the speech at issue.

However, we also made clear that “the solution to this moral cowardice is not to expand the use of vague and overbroad harassment codes so that they apply in more cases. Rather administrators should eliminate these codes and defend free speech in all cases. No hypocrisy. No double standards.”

With its new rules, Penn demonstrates it took all the wrong lessons from the past year. Other institutions would do well to steer clear of Penn’s example.

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