Campus encampment bans rarely violate the First Amendment. Here’s why.

As several members of Columbia’s leadership prepared to testify before a congressional committee on anti-Semitism on April 17, pro-Palestinian protesters erected a “Gaza Solidarity Encampment” — setting up tents to camp out on the South Lawn of Columbia’s campus and demanding the university divest from Israel. After protesters refused several warnings to vacate, administrators called in New York City police on April 18 to clear out the encampment, which they did, arresting more than 100 protesters. But the following morning, protesters were back, this time setting up camp on the West Lawn.

Their idea caught on. Similar encampments sprouted up on campuses across the country in the following days. Unlike traditional protests, in which participants usually gather with only their voices and/or signs, these encampments have been marked by students setting up tents and other structures, often with the stated intent to stay 24/7 until their institutions meet certain demands.

Student protesters have since erected encampments at more than 100 colleges and universities nationwide — as well as five universities in the United Kingdom, seven in Australia, and at least two in Canada. While many have been peaceful, there have been instances of violence and thousands of arrests as college administrators summon local police to their campuses to clear out encampments. 

Which begs the question: If public universities must honor students’ First Amendment right to peaceful protest, and most private campuses promise to provide near-identical protections, can these institutions ban peaceful encampments?

In short, yes. 

While campus encampments are expressive conduct — no one doubts protesters are sending messages here — that’s not the end of the story. 

Even in spaces where protest rights are at their maximum — public sidewalks, public parks, and open outdoor areas of public campuses — the government, including public universities, can still enforce reasonable time, place, and manner restrictions on when, where, and how people protest. 

Institutions must be able to regulate on-campus expressive activity to ensure it doesn’t interfere with their primary educational and scholarly missions.

These rules typically include limits on amplified sound, erecting structures, the number of people who can safely gather in a particular space, and, yes, bans on camping. 

Time, place, and manner rules must be content neutral, meaning they’re applied evenly regardless of the substance of the speech. They must also be narrowly tailored to serve a significant government interest, leave open ample alternative channels for communication, and be applied evenhandedly, not discriminating against particular viewpoints.

Restrictions on encampments and building occupations generally satisfy the criteria of a legitimate time, place, and manner regulation. While free expression and open inquiry — key elements for the transmission and advancement of knowledge — are values of paramount importance to a university, institutions must be able to regulate on-campus expressive activity to ensure it doesn’t interfere with their primary educational and scholarly missions. 

Here’s what students need to know about protesting on campus right now

News

As Israel/Gaza campus protests spread nationwide, FIRE answers questions about students’ expressive rights.

Read More

Overnight encampments could create public safety risks and overtax campus security. They may prevent other groups on campus from using the space for a prolonged period. They could obstruct access to campus facilities or disrupt classes and other daily activities. All of these are legitimate reasons for universities to restrict encampments. We’ve seen the result of these kinds of disruptions at Columbia, Tulane and UCLA, where the universities canceled classes or moved them online, or at Rutgers, where the university postponed finals.

But universities’ power to regulate is not unlimited. Administrators can’t target encampments because they dislike pro-Palestinian views — even if some consider the expression anti-Semitic or otherwise offensive or hateful. Contrary to common misconceptions, that kind of speech is fully protected by the First Amendment unless it also constitutes conduct meeting the legal definition of a true threat, discriminatory harassment, incitement, or one of the few other, narrowly defined categories of unprotected speech. 

In practice, this means a protester on the quad, holding a sign reading “Intifada” or “From the river to the sea” is almost certainly engaging in protected speech. If that protester, however, hangs that sign on a tent they’ve erected and which they refuse to vacate for days on end, the university can take steps to remove the encampment. Or, if that protester uses a sign (or anything else) to block a Jewish student from moving around campus, that could cross the line into discriminatory harassment and maybe even assault. In every situation, the facts are key to the First Amendment analysis.

Ultimately administrators may lawfully forbid encampments, overnight camping, and other similar actions on public and private campuses. But there are still plenty of ways to lawfully protest on campus. We encourage students to protest on issues they’re passionate about, within the bounds of laws that keep the free speech playing field safe and fair for everyone. 

Check out FIRE’s guide to protest to learn your rights so you are empowered to lawfully raise your voice. 

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).