The Palestine exception: Experts and activists say universities suppress Pro-Palestine speech

By Kallie Cox

On April 27, a group of Muslim students at Washington University in St. Louis laid out mats and began their evening prayers. 

Behind them, other students, faculty and community members began to prepare food, talk quietly and finish setting up the student encampment for Palestine. 

Then police from several local departments armed with zip ties — who had quietly slipped away from the lines they had formed near the encampment as photojournalists documented the prayers — descended on the encampment. 

Protestors scrambled to form a human chain around the encampment, chanting: “Who do you protect? Who do you serve?” 

Before the arrests began, the activists held a peaceful march and rally from Forest Park to the heart of campus, where they erected the encampment. After dispersal orders were given, they moved the setup to WashU’s front lawn facing Forest Park and a busy city street. 

Police stared down the students for hours, occasionally issuing dispersal orders and threatening arrests. Green Party presidential candidate Jill Stein and her staff, President of the St. Louis Board of Aldermen Megan Green and Ward 7 Alderwoman Alisha Sonnier, attempted to speak with the university administration after students asked them to mediate the conflict. As this reporter observed and reported for the Riverfront Times, they were forced back by police and administrators refused to cross the line to speak with them.

Stein and her staff, along with nearly 100 other peaceful protestors, were wrestled to the ground and arrested when police broke up the encampment.

Steve Tamari, an elderly Southern Illinois University Edwardsville professor who was standing away from the encampment and filming the scene as an observer, was hospitalized after four police officers wrestled him to the ground and left him with multiple broken ribs and a broken hand.

University leadership appeared to be screaming at members of the press that they “shouldn’t be here,” and aren’t supposed to be observing or reporting on the protest. 

After the protest, the students who had been arrested were promptly suspended without investigation or hearings, evicted from student housing, forbidden from returning to campus during finals and denied access to their student meal plans. Six faculty members were suspended and ordered to have no contact with students; four were arrested.

The university faced condemnation for its handling of the protest, and the fallout has led to a public debate on what First Amendment experts and scholars refer to as the “Palestine exception.” 

This debate is taking place on a national scale as universities continue to crack down on student protests. At UC Berkeley and Northwestern University, administrators destroyed Jewish religious structures in favor of Palestine. At the University of Minnesota, pro-Palestine protestors were arrested while occupying an administrative building. At WashU, Chancellor Andrew Martin and at least one professor, Michael O’Bryan, aired their concerns in opinion pieces published in September by The Hill, a media organization devoted to covering U.S. politics.

All of this is happening in the weeks leading up to the Nov. 5 election, where research suggests that for many young voters, the U.S.’ support for Israel’s atrocities in Gaza are a key issue. 

Free speech hypocrisy

In Martin’s essay, titled “This semester on campus must be different,” he indirectly addressed the mass arrests on Wash U’s campus, writing, “The lessons of last school year were forged in a crucible of duress. This year, decisions must be made deliberately and with conviction.”

He said campus protests “became volatile, and members of campus communities felt threatened or intimidated.”

“Free expression is foundational to education — and has limits,” Martin wrote “Free speech and healthy debate are cornerstones in the search for truth. Peaceful protest can be a powerful means of expressing a point of view.” 

“But behavior or speech that threatens, intimidates, harasses, discriminates or unreasonably disrupts teaching and learning cannot be tolerated. Whether speech or actions cross that line must be discerned carefully and on an absolutely content-neutral basis,” he said.

Martin did not respond to requests for comment for this story and would not answer clarifying questions. 

This reporter, who was at this Wash U protest along with several others, has not observed any antisemitic or violent speech from these demonstrations, which are partially organized by several Jewish activists.

In his arguments, Martin said campuses are no place for “tent cities,” and said universities cannot be “passive” when it comes to protests that violate policies or create chaos.

“Some may view such measures as suppressing free expression,” Martin wrote in his essay. “To the contrary, these are the steps we must take to create the conditions that will allow us to focus on the final and most important principle: that we must close the distance through discussion and dialogue.”

“We must welcome all voices to the table, grounded by frameworks for how to discuss, debate and even argue about important topics with civility and respect,” Martin wrote “Closing distance is the very essence of higher education. Enforcing speech and demonstration policies is vital to maintaining an environment where civil discourse can thrive.”

Martin notes in his essay that he cannot impact the war on Gaza as a university chancellor. Activists have pointed out that they are calling on the university to divest from Boeing — a top manufacturer of bombs and munitions being sent to Israel —  a decision within the university’s purview. 

O’Bryan sees Martin’s actions as “free speech hypocrisy.” In his essay, he says Martin’s op-ed and actions contradict his “reputation as a free speech absolutist.”

“What’s more, this argument — that the sole criteria of a speech act’s threat is whether a listener feels threatened — is the exact doctrine that (Nadine) Strossen and similar campus free speech advocates identify as the greatest threat to free expression. Martin appeared to agree when telling Michigan students terrified of a white nationalist guest speaker that they were in no danger. Why isn’t a Richard Spencer speech a threat when a pro-Palestine chant is?”

“These contradictory standards display what activists call ‘the Palestine exception,’” he wrote. “Self-declared defenders of free speech suppressed protests against the slaughter in Gaza because of ideological content, and in this respect, WashU joins its peer institutions.”

In an interview with Gateway Journalism Review, O’Bryan said one of the most disturbing things to come out of the university’s condemnation of pro-Palestine protests is that there are no specific allegations about what speech is considered hateful or threatening. 

“It’s never been made clear what anybody is saying or doing to prompt emails that come out and say that, ‘We’re getting reports of disturbing activity and threats,’” O’Bryan said. “I have seen no concrete evidence presented by anybody from the administration that there was anything about any of these protests that was out of the ordinary from many protests that I saw before.”

O’Bryan said it is probable that university leaders are conflating anti-zionist speech with antisemitism. 

“I can’t know, because they won’t communicate about what their standards are,” he said.

Martin did not respond to questions asking him to clarify the threatening speech he has referred to.

The Foundation for Individual Rights and Expression, an organization dedicated to protecting free speech on college campuses, said it has seen troubling responses from universities in the wake of pro-Palestine student protests.

“For example, Brandeis University suspended its campus chapter of Students for Justice in Palestine at the outset of the war,” FIRE fellow Graham Piro said in a statement to the Gateway Journalism Review. “Other elite private universities looked to reform their policies to punish protected expression about genocide. The encampments also created some difficult situations as the encampments oftentimes violated viewpoint-neutral time, place, manner restrictions.”

Piro said FIRE’s review of the data around student encampments found that a university’s free speech climate prior to the aftermath of the Oct. 7, 2023, attacks indicated whether or not encampment protestors at that school would be arrested.

The new ‘McCarthyism’

Green, an adjunct professor, was not arrested at the protest, but she was suspended. Since then, she has been terminated by the university after advocating for Palestine.

The Brown School claimed the termination was because it no longer wanted to hire elected officials. However, other elected officials remain in teaching positions in other departments at the university. 

The response to pro-Palestine protests compared to the university’s response to other protests has created a culture of fear on campus, some students and faculty say.

“We’re not seeing the same type of activism among students, and that’s not because they don’t care about Palestine anymore. It’s because when students’ degrees aren’t conferred, or people are suspended for a semester or expelled, or in my case, are terminated, then it is to send this signal that if you exercise your voice, if you raise your voice too loud, then the university is going to come down on you,” Green said. 

Green draws parallels between protests she was involved in against the Iraq War and in Ferguson after police killed Michael Brown.

“There is a much more heavy-handed approach, it seems, to campus protests today than during the Iraq War,” she said. “If there were major campus protests against the Russian invasion of Ukraine I’m not sure that there would be the same draconian measures against students. I think we might see an environment that is closer to what we experienced during the Iraq War than what we’re seeing today.”

The response to pro-Palestine protests seems to be similar to the police response toward the Ferguson and Black Lives Matter protestors, she said. 

“We often would remark how Black Lives Matter protesters were treated differently than other types of protesters,” Green said. “We would see a more brutal response in terms of aggressive policing and tear gassing of Black Lives Matter protesters than we would say of labor protesters or women’s march protesters or pro-reproductive health protesters.”

Other encampments have taken place on Wash U’s campus over the years, but none of them have been met with the same response as the pro-Palestine encampment, Green said. 

Palestine exception?

Gregory P. Magarian, a first-amendment expert and law professor at WashU, said it is difficult to escape the conclusion that there is a Palestine exception to free speech.

“What we’ve observed with these Palestine protests measured against any norm of free speech — in the case of public universities, the actual First Amendment — is something that I’ve rarely seen before,” Magarian said. “You’ve got congressional committees browbeating and driving out of their jobs university presidents for the sin of not punishing students who say things like ‘from the river to the sea Palestine will be free.’ The notion that that slogan is outside the First Amendment’s protection, or outside ordinary norms of free speech, is a completely crazy notion that is textbook day one, free speech stuff. If someone is out on the street yelling ‘Kill all the Jews,’ that’s a different conversation.”

This exception is creating a new wave of McCarthyism as too many people are deliberately attempting to weaponize false connections between dissent and terrorism, he said. In addition to the term terrorist and instead of the label of communist, critics are calling pro-Palestine speech and criticism of Israel antisemitic.

“There’s a lot of rhetoric from a certain segment of people who support Israel saying, ‘If you’re participating in these protests, you are a terrorist, or you are a supporter of terrorists,’” he said. “That is functionally identical to […] being in the 1950s and saying [if you are] expressing commitments to any kind of social or economic egalitarianism, you’re a communist.”

The First Amendment doesn’t apply to private universities, Magarian said. But the Palestine exception shows how fragile private universities like Wash U’s free speech commitments can be. 

“The fact that these assaults on dissent and assaults on free speech are happening on this campus, with the institution’s strong professions of commitment to free speech with the chancellor’s personal assertions of a commitment to free speech, is particularly distressing and appalling,” he said.

Magarian also sees connections to the Iraq War. 

“In the run-up to the Iraq War in 2002, 2003, there was a lot of government pressure and social pressure to suppress dissenting voices, and the result of that was the entry of the United States into a war that is almost universally decried now as a disastrous misadventure with a horrible human toll,” he said.

“I think history is going to judge this moment the same way that the pressure exerted against dissent by supporters of Israel is whether for some people, deliberately, [or for] some people entirely inadvertently that pressure is allowing a genocide to happen, and I think history is truly going to judge this time as a tragedy and a disgrace.”

Kallie CoxKallie Cox is a freelance journalist who previously worked for the Riverfront Times and a frequent contributor to GJR. They can be reached at Kecoxmedia@gmail.com.