Welcome to Politically Speaking.

I'm Elizabeth Bennion, chancellor's professor of political science and director of community engagement in the American Democracy Project at Indiana University, South Bend.

Across the nation, students are staging demonstrations to protest the ongoing conflict in Gaza.

Peaceful protesters are camped out in tents as part of an ongoing protest at the University of Michigan in Ann Arbor.

While protesters disperse shortly after police remove their tents last Thursday at the University of Notre Dame.

Meanwhile, Indiana University Bloomington recently made national headlines following protester arrests following changes to long standing policies regarding the use of temporary structures, including tents.

Today, we dig into this issue with Josh Bleisch, staff attorney for Fire, the Foundation for Individual Rights in Education, who is an alumnus of Indiana University's Mauer School of Law.

Thanks for joining us.

Yeah, thank you so much for having me.

I really appreciate it.

Before we talk about the protests, I want to ask you to explain a little bit what fire is and what the mission of the organization is.

Yeah.

So fire is and actually, we've recently expanded our mission and changed our name.

So we are the foundation for individual rights and expression.

we, still maintain a, focus on college campuses as an important hub and an important center for free speech.

but we are a nonpartisan, nonprofit organization that is dedicated to defending the free speech rights of all Americans, all throughout the country.

so, we we we defend faculty students, from the left, the right, you know, nowhere on the political spectrum, as well as as, people who have been, had their rights violated by local governments by the state, by, you know, federal government, whatever it is, or if it's protected, we're here to defend it.

Okay.

Well, that, means that you work with folks from very different political worldviews.

And perhaps sometimes it's protesters and counter-protesters alike.

I want to ask a little bit about student rights, specifically, what legal rights do students have regarding protesting on college campuses specifically?

Yeah.

So on college campuses, the First Amendment applies with the same force that it does everywhere else.

and so that means, in public spaces on college campuses, you know, your quads, your malls, whatever.

if it's a public college or university and that's a public space, that's the same as, you have the same rights there as you would on the public sidewalk or streets in, your community.

so students who gather to, to share their viewpoints, for example, in Dunn Meadow or on the quad.

you know, at any other campus, throughout the country, you know, they have pretty broad free expression rights.

Now, there are some limitations to the First Amendment and some limitations that can, the government can place in those areas.

but but they're pretty narrow, and we can get into those a little bit later.

But but, you know, I just want to emphasize that, generally speaking, in those public areas, the First Amendment applies just like it would, you know, anywhere else.

And with those rights then also apply to faculty and staff working for the university?

Of course.

Yes.

and especially if it's, the matter that they're protesting as a matter of public concern.

we always, as, Americans, as people who live in the United States, have a right to comment on those.

Now, one of the things that happened you mentioned Dunn Meadow, one of the things that caused a bit of controversy was the decision to clear the tents and arrest students who were protesting there.

I wonder if you could talk a little bit about that particular incident and why it attracted so much attention, and what caused your group some concern about what happened there?

Of course.

What makes the case at Dunn Meadow so interesting is that, for 55 years now, the trustees, Indiana University has held out that area specifically as an assembly ground, as a place for expression on all topics.

And in that policy, this is a 1969 policy.

the they specifically mentioned tents and other structures as having, you know, the, the effect of perhaps, you know, advancing, your, your expression or making it stronger and being particularly useful.

but what administrators at IU did is that the night before a planned protest, a protest in which the administrators knew, students planned to use tents to to, you know, be a show of solidarity with, similar student protests, elsewhere in the country.

they gathered a community of a committee of all, administrators and passed a new policy that prohibited tents in Dunn Meadow without prior approval, whereas before they were allowed, regardless of approval.

as long as, they were not left overnight, essentially.

So I noticed, the university, put out a tweet or a post on X, saying are you encourages and respects free speech, including the right to peacefully protest and demonstrate consistent with university policy, the installation of temporary structures requires advanced approval and camping is not allowed overnight.

I you students, faculty, staff and visitors are expected to comply with both university policy and state law.

Students are held accountable for the Student Code of Conduct.

These policies are in place to safeguard the IU community.

there are a lot of comments about that because of the quick change to policy, but do they, as administrators, reserve that right, to change the policy overnight and then hold students accountable for that change in a vacuum, a policy change like the one they made would, you know, likely have no problem?

but what happened here, having this change of policy in the middle of the night before the this planned protest, really smacks of viewpoint discrimination.

this is a problem because the administrators knew what kind of demonstration was planned, knew what kind of speech was happening, and in statements from president, and she mentioned, concerns about anti-Semitic speech being associated with this general movement as one of the motivating factors for her decision.

Or, you know, in this case, really, it was the provost who convened the committee.

But but the administration's decision to make this policy change.

so, you know, whereas a government, a university can establish reasonable time, place and manner restrictions.

what I you did in this case really just raises the specter of viewpoint discrimination.

and that they, you know, they were targeting this particular protest time, place and manner restrictions.

That is something that the court has widely upheld as appropriate for whether it's a public university administration or a municipal or county, government.

How do universities or communities in general balance that right to free expression, to free speech, to protest with the safety of the public?

And how do those time place and manner, restrictions come into play?

Yeah.

So the balance is the key, right?

and that's why it's always reasonable time, place and manner restrictions.

And it depends on the type of forum to, to get into the nitty gritty.

but in a, traditional public forum, like your sidewalks, like your public parks, like your, you know, public areas on a college university campus.

those restrictions have to be content and viewpoint neutral, which means that they cannot, exist in a way that, targets any particular type of speech.

or any particular viewpoint.

and this makes sense.

So normal, reasonable time, place restrictions are things like, you know, the park closes at dusk because there are safety concerns or, there are limitations on the use of amplified sound.

so you're not, making a whole, you know, a lot of noise in an area with, you know, residential buildings or what, what have you.

those might be reasonable for the forum that, that that they're in.

And that's the analysis that the court, what courts will, will look at.

But, you know, again, to stress, those have to be content and viewpoint neutral.

and that's what made the IU case so concerning, because it seemed like they were attempting to shut down a particular protest on a particular topic, rather than creating a policy sort of, as part of a overall policy review of the university for, events moving forward.

Exactly.

If iu a year ago today had, decided, okay, we think that our policy that allows tents with or would with or without approval is maybe a little outdated.

And we have safety concerns about tents or whatever the government interest they might articulate.

that might be okay.

But that's again, that's not really what happened here.

Now, we do know that many elected officials have been speaking out and across the country encouraging universities to crack down with particularly seeing that here in Indiana with members of Congress sending not only university presidents like President Wen, but also their supporters, emails and, mailers, really criticizing protests on college campuses, referring to them as pro Hamas, pro terrorists and violent and urging the campuses to crack down.

I wonder what you make of that pressure and what that means for universities and how administrations and or should respond, in your view, to this intense political pressure at the state and federal levels.

Well, the beautiful thing about the First Amendment is that it protects all speech.

and probably most importantly, the unpopular speech.

And just because, somebody might view a particular demonstration or a particular type of speech as offensive.

that doesn't mean it's any less, protected by the First Amendment.

As I kind of alluded to before, there are very narrow exceptions to, what is protected by the First Amendment.

And they are we're talking about, incitement to violence and true threats when they're properly defined.

And those are narrow exceptions.

but hate speech is not an exception to the First Amendment, despite, popular thought.

because and again, that makes sense.

Because in the political arena, what somebody says, you know, somebody who disagrees with me says I might find very offensive.

but but they have every right to say it.

And we need to be able to protect that to a, to to ensure that there's a robust exchange of ideas.

And, you know, the proverbial marketplace of ideas is allowed to continue on.

and so what I would encourage university leaders who are getting this kind of pressure from, from elected officials and from members of Congress, from, you know, whoever is in these positions of powers is to resist those calls to punish students based on their viewpoint.

If the concern is we don't like what they're saying or what we view, what they're saying is offensive.

That's not an adequate reason to break up a protest or to punish anybody for their expression.

Now, you mentioned public universities.

I'd like to ask for a moment about private universities.

We did see a small, protest at the University of Notre Dame, and there were some tens erected.

According to their policy, they do need to notify the administration ahead of time.

Intense are not allowed.

And so the police did dismantle the tents, sometimes with protesters inside them, but and seemed to disperse, students stayed a little while longer and then dispersed themselves.

are they within their rights to do to protest?

They're on Notre Dame property, or is that just dependent on the university policy?

It's dependent on the university.

But the university policy.

but what often is the case in private universities is that they will promise expressive rights that are coextensive with the First Amendment and, of course, that various private university to private university.

And, and there are universities that have religious missions or that explicitly don't, promise free expression.

They have other principles and ideals that they place above, free thought and free expression.

And, you know, that's that's something that they're entitled to do as private institutions.

but even still, you know, any institution, private, or otherwise, that promises that kind of free expression should, should, should follow the principles that are, that are outlined in the First Amendment case law.

There's this distinction, then, between public and private universities also apply to allowing speakers on campus.

Controversial speakers from the right or the left, that private institutions have more leeway to prohibit such speakers than would public institutions.

Yes.

That's right.

You know, the First Amendment applies to the government.

you know, first of all, applies to the federal government.

And then that's been applied to the states through the 14th amendment.

So so it's a limitation on government power.

but again, you know, if if a private institution makes those promises, they, they're morally and perhaps legally, obligated to uphold those promises.

Now, one of the things that we've heard from university administrators on multiple campuses that outside agitators have joined the mix and are, in their view, sort of rallying the students to escalate the situation in ways they might not.

and to continue their taking over the protests rather than letting them be, sort of homegrown and student led.

it sounds like even if they're outside agitators, they may have a right to be there on the university campus.

based on what you're saying.

But we've also had IU ban people, students and not from campus.

So how does that all work?

So I'll take the first one.

you know, first of all, if it's a public space, that, you know, it's a public campus and it's a public space, then non-students have just as the, you know, as equal a right to be there as the students do.

and, you know, to cite a historical example, there is a, you know, a situation, I believe it was in the 90s of a Bloomington resident who set up camp in Dunn Meadow to protest, U.S. involvement in the Gulf War.

and just because he wasn't a student didn't mean he didn't have a right to be in Dunmow.

and that applies to every other public space on a college and university campus.

but to to turn to the second point about bans from campus.

you that's that's a concern.

You know, I'm thinking specifically of the IU example, because it's probably of most interest to your viewers.

it is something, you know, that could be in and within a university's right to, you know, enforce their policies and to, to provide discipline.

But when you're, when you're issuing these campus bans without due process and it's, you're applying it to students and faculty who need to be there to go to class and to do their jobs.

That also creates a real problem.

And it also is potentially a prior restraint on any future, protected expression that they may wish to engage in on those public spaces and on the campus.

That sounds like we may be seeing legal, action on the part of some of these students who were banned.

If they're not satisfied with the university appeals process.

Yeah, I think the the students have been encouraged to go through the university appeals process, and the university has said that in most cases, their their bans will be lifted.

In the meantime.

but I imagine if, the the bands are not permanently lifted or if there are any other issues with due process that, you know, I, you know, students may may be asserting their rights.

What resources do students have who feel like their free expression rights have been violated?

So I would encourage anybody who feels like their free speech rights have been violated to, they can visit our website, which is the fire talk.

We have resources and information about, protected expression on campus and ways to get help.

they can submit a case on our website.

that is the fire.

Com, or the fire.org/alarm.

and they'll be reviewed.

And that way.

Now I want to also ask about, what happens in terms of those students who feel like they are unsafe on campus.

We have heard some Jewish students and faculty in particular say that they feel unsafe and, it's inhibiting their ability to do their work on campus.

in some cases, there have been threats against Jewish students.

In most cases, the protestors are talking about other policy rather than, making comments about Jews or about, the Israeli people.

But there have been a few, outliers, and that makes people feel unsafe, safe.

What would you say to those students?

I would point out that, harassment and true threats targeted, true threats, properly defined, are not protected by the First Amendment.

and so and in violence is never protected.

So to the extent that there is any violence or any, legitimate harassment or threats made, those should be and can be punished by the university.

but broadly broad, criticism of Israel or criticism of, of us involvement in, the conflict and, and advocacy for the, you know, one side or the other of the conflict between Israel and Hamas.

that's, you know, that's protected by the First Amendment.

And one of the beauties of a liberal education is that we expose ourselves, and students are exposed to many different viewpoints.

Sometimes that might be uncomfortable.

Sometimes that may offend.

but that's an important part of, of learning to, to be an adult.

And in this, you know, in our pluralistic society and to become, you know, you know, a full member of our society, right?

so, so that's, that's part of what it means to to go to a college and university in the United States.

There are multiple viewpoints, including ones that you strongly disagree with, and be willing to discuss and deliberate those.

Well, drawing the limit at actual threats and violence.

so you mentioned the word liberal education there.

maybe we need to clarify for viewers that you were talking about liberal arts rather than liberal versus conservative.

Yes.

I'm talking about, you know, small l liberal education in that, you know, it's a free society with free exchange of ideas.

right now, I also wonder, as police are put in this position to, deal with protesters.

How do those potential tensions between the protesters and the police, affects the broader community and police opportunity to do their job on campus or in the broader community?

Yeah, I think first I'd you know, I'd like to emphasize that that I myself and we offer our First Amendment experts and not, use of force experts.

but, you know, I think we would just encourage, you know, police need to, to be there to protect, people from violence.

you know, there, any specific use of force is in any particular, circumstances is a really fact intensive problem.

and that really depends on the, the circumstances.

But, when police are involved in a protest or gathering or surrounding a protest, it's incumbent upon them to, to be restrained as they as as possible and to make sure that, the protesters that they are, that are surrounding are protected from violence and, that there's as much room for speech as possible.

And the protesters who are arguing for, more rights for the Palestinians, protesters who are counter protesting to support the actions of Israel, that all of those would need to be protected equally by those police.

Yes.

That's right.

You know, so if you have a situation where where there's a demonstration and a gathering crowd of counterprotesters, and you know, those either the protesters or the counterprotesters or both are getting violent.

you know, there should be no tolerance for violence, but the, you know, the broadest possible tolerance for expression.

And one of the things that we've heard a lot in terms of a big concern at college campuses at this particular time of year, is that commencement exercises, graduation ceremonies can be interrupted.

And in fact, we have seen a couple of cases where graduation has been canceled.

If we do the math, some of those would be the same students whose high school graduations were canceled due to their pandemic.

And so there has have been some students and faculty calling on protesters to, perhaps quiet down, disperse, take a break so that commencement can move forward.

Is this just the cost of living in a free society?

I wonder what what you would say to those folks who are really concerned about sort of the rights of all these folks who are trying to enjoy their graduation?

Well, yeah, I mean, it it can be.

Right.

So, if if the concern is just protesters in a separate area of campus that are not causing any disruption to commencement activities to to those exercises.

they should be allowed to remain and they should be or to remain expressing themselves and, sharing their point of view.

but what is not protected, but what would not be protected by the First Amendment is any disruption or interruption of commencement activities.

and, so, you know, simply calling on protesters to disperse if they are in a certain area of campus but won't cause any actual disruption to commencement activities.

that would be inappropriate.

but but if there's any, you know, actual disruption to those activities, you know, that that would not be protected by the First Amendment.

but would disruption be things like barring people's way to this ceremony or what about a message on a graduation cap, a comment by, a student speaker, a group that decides to turn their back, or a yellow.

Something about disinvestment.

where where is the line there?

legally.

Constitutionally, yeah.

If students want to share a message on their cap.

you know, you know, that doesn't disrupt the proceedings.

what might disrupt the proceedings is, is blocking entrances to buildings or preventing people from moving about campus or storming the stage and preventing, people from walking on and getting their diplomas or speakers who have, a right to the podium or to the stage.

preventing them from sharing their message.

that's the kind of disruption that that would not be protected.

Now, I, also wonder if there is anything else that you think viewers should be thinking about in this last 30s or so that we have, as they hear these stories about student press protests and try to put it all in context.

Yeah, I mean, this feels like a, unprecedented time.

And, you know, it's it's understandable, too, to think that, but this is something that we have dealt with in our country for decades upon decades.

And, it always comes back to, when we tolerate other viewpoints and tolerate free expression, when we're using our voices and we're not using our fists.

And so I would encourage everybody to, to stick to that principle, to use their voices to, to, stay away from violence and, and, and, and be safe.

Well, we certainly appreciate you sharing your voice with us today.

And that's all the time we have for this week's Politically Speaking.

I want to thank our guests, Josh Bailey, staff attorney for Fire, the Foundation for Individual Rights and Expression.

I'm Elizabeth Bennion, reminding you that it takes all of us to make democracy work.

We'll see you next time.

This WNIT Local production has been made possible in part by viewers like you.

Thank you.