In a series of legal rulings that are beginning to define the boundaries of protest on American campuses, judges are delivering a consistent message: broad criticism of Israel and advocacy for Palestinian rights constitutes protected political speech, not unlawful harassment.
The decisions mark a significant setback for a wave of litigation launched primarily since 2023 by pro-Israel groups, which have filed hundreds of lawsuits and legal actions aiming to silence such speech. These groups have argued that criticism of Zionism is inherently antisemitic and creates a hostile environment for Jewish students, violating their civil rights. Critics have labelled this strategy as “lawfare”.
Courts Draw a Line at Political Expression
Central to the legal battle are phrases like “from the river to the sea, Palestine will be free” and “globalize the intifada”. In multiple rulings, courts have found these to be protected under the First Amendment. A pivotal appeals court panel in the case against the Massachusetts Institute of Technology (MIT) was unequivocal, stating that while plaintiffs were entitled to view anti-Zionism as antisemitism, they could not insist others be bound by that view.
“We therefore reject plaintiffs’ claimed right to stifle anti-Zionist speech by labeling it inherently antisemitic,” the judges wrote. The MIT order is particularly significant as the only appeals court ruling on the issue since October 2023, creating binding precedent.
Judges have extended this protection to other contentious expressions, including claims that “the existence of a State of Israel is a racist endeavor” or comparisons of Israeli policy to that of the Nazis. Similarly, in Landau v Haverford, a judge dismissed a suggestion that wearing keffiyehs supported violence, calling them a “classic example of first amendment expression”.
“For the most part, courts have said that that doesn’t fly when we’re talking about expressly political speech that isn’t targeted at a specific person or group because of their ethnicity or national origin,” said Brian Hauss of the American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project.
The Title VI Hurdle and the Importance of Context
Parallel to these free speech arguments, lawsuits have been brought under Title VI of the 1964 Civil Rights Act, which prohibits discrimination in federally funded programs. During his first term, the Trump administration expanded Title VI protections to cover Jewish students. Pro-Israel groups, including the Brandeis Center, have argued that universities violated this statute by failing to curb pro-Palestinian activism.
However, in five key Title VI cases reviewed by the Guardian with legal experts, judges largely found the universities had not violated students’ civil rights. These cases are “among the most prominent” in the debate, Hauss said, and will shape how courts and universities understand the issue.
A critical legal standard in these cases is “deliberate indifference” – whether a university knowingly failed to address harassment. Many claims have been dismissed because plaintiffs could not meet this high bar, even where schools had taken some action to limit protests. A judge in a case against the University of Pennsylvania captured a common judicial sentiment, writing that at worst, the university was accused of “tolerating and permitting the expression of viewpoints which differ from their own.”
Yet context remains paramount. While broad slogans are protected, speech that singles out individuals may not be. In Gartenburg v Cooper Union, a judge allowed a Title VI claim to proceed because protesters chanted “Free, Free Palestine” while beating on the door of a library room where Jewish students were sheltering. Separately, the same judge noted that writing “from the river to the sea” in a font associated with Hitler’s Mein Kampf could constitute intimidation. That case was later settled.
“That feels a little bit more threatening, and arguably is inciting imminent lawless action,” said Tim Heaphy, a former US attorney. “But if it’s out on the public square… that’s probably protected. That’s where context comes in and matters.”
Political Pressure and Legal Pushback
The courtroom battles unfold against a backdrop of intense political pressure. The Trump administration has withheld billions in federal funding from universities, alleging a failure to combat antisemitism under Title VI. This campaign has also faced judicial scepticism.
In a lawsuit brought by Harvard over frozen funds, a judge ruled in September that she found it “difficult to conclude anything other than that [the Trump administration] used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities”. Furthermore, a separate administration policy of arresting and deporting noncitizen students for pro-Palestinian advocacy was ruled a violation of the First Amendment.
Organisations are deeply entrenched on both sides. The Brandeis Center continues to argue its cases “showcase the litany of antisemitic conduct Jewish students and faculty are facing”. Conversely, groups like Palestine Legal and the ACLU are actively defending speech rights, with the ACLU filing suits against universities for deactivating student groups. The American Association of University Professors (AAUP) has reported on the “weaponization” of Title VI, arguing it undermines academic freedom.
Many rulings are being appealed and cases are ongoing, meaning the body of precedent is still forming. But the current trajectory of judgments is clear. As Radhika Sainath, an attorney with Palestine Legal, noted, these decisions are “starting to create a body of law” that protects the right to criticise Israel, delivering a blow to the legal campaign to silence it.
