Misunderstanding First Amendment, CUNY says anti-Israel commencement speech was not free speech but ‘hate speech’

After a student-selected speaker criticized Israel, the university, capitalism, and more in her May 12 law school commencement speech, the City University of New York released a statement calling the remarks “hate speech” and claiming they are not free speech. FIRE wrote CUNY today explaining that speech does not lose its First Amendment protection solely because some view it as hateful or offensive. Oh, and that, as a public institution, CUNY must adhere to the First Amendment.

In her speech, graduating law student Fatima Mousa Mohammed accused Israel of “indiscriminately raining bullets and bombs” on Palestinians, criticized CUNY for working with the “fascist” New York City Police Department and military, and expressed disdain for “capitalism, racism, imperialism and Zionism.”

CUNY’s implication that Mohammed’s comments are unprotected will certainly chill speech, including by implying that it can punish any speech the public or the university subjectively deems hateful.

Mohammad’s remarks drew intense backlash, including from legislators. CUNY’s chancellor and board of trustees, however, went further, calling Mohammed’s remarks “hate speech,” which they said “should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.”

CUNY’s statement shows a misunderstanding of the university’s First Amendment obligation to protect expression even if it’s perceived as hateful or offensive. As a public institution bound by the First Amendment, CUNY cannot penalize student expression protected by the First Amendment. As our letter explains:

While some examples of hateful expression may fall into narrow exceptions to the First Amendment, the Supreme Court has repeatedly held that there is no categorical exception for expression others view as hateful. Whether speech is protected by the First Amendment is “a legal, not moral, analysis.” The Court recently and expressly reaffirmed this principle, refusing to establish a limitation on speech viewed as “hateful” or demeaning “on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground.”

We told CUNY it is free to criticize Mohammed’s remarks and any other remarks with which it disagrees. However, CUNY’s implication that Mohammed’s comments are unprotected will certainly chill speech, including by implying that it can punish any speech the public or the university subjectively deems hateful. We urge CUNY and other institutions to appreciate their First Amendment obligations before releasing statements claiming protected expression is “not free speech.” CUNY must also make publicly clear that subjectively offensive expression is protected and that it won’t punish such expression in the future. 

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 a 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).