Free Speech as White Privilege: Racialization, Suppression, and the Palestine Exception

*Associate Professor, Suffolk University Law School., J.D. Harvard Law School, A.B. Harvard College. Many thanks to Jessica Reyes, Sarah Reyes, and Ragini Shah for helpful conversations and comments on drafts.Show More

Introduction

Free speech is under siege. This is not to say that all speakers and viewpoints are at equal risk—some voices receive support and protection, while others are subject to threats and suppression. Pro-Palestinian speech falls into the latter category. Critics argue that there has long been a “Palestine Exception” to free speech,¹ 1.See Palestine Legal, The Palestine Exception to Free Speech: A Movement Under Attack in the US 4–5 (2015), https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/56‌0c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf [https://‌perma.cc/W4JT-79UR].Show Morebut attempts to silence pro-Palestinian advocacy have dramatically increased since Israel began its assault on Gaza in October of 2023. This assault was launched after incursions by Hamas militants that killed approximately 1,200 Israelis.² 2.See Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times (Dec. 22, 2023), https://www.nytimes.com/int‌eractive/2023/12/22/world/europe/beeri-massacre.html.Show MoreIn response, Israel has killed more than forty-six thousand Palestinians to date³ 3.See Emma Graham-Harrison, The Devastating Impact of 15 Months of War on Gaza, The Guardian (Jan. 15, 2025, 2:26 PM), https://www.theguardian.com/world/2025/jan/15/the-dev‌astating-impact-of-15-months-of-war-on-gaza. This figure is based on reports from Gaza health officials. Id. An analysis by outside experts estimates that the number of deaths resulting from traumatic injury in Gaza is actually far higher, having reached 64,000 by June 2024. See Zeina Jamaluddine, Hanan Abukmail, Sarah Aly, Oona M R Campbell & Francesco Checchi, Traumatic Injury Mortality in the Gaza Strip From Oct. 7, 2023, to June 30, 2024: A Capture-Recapture Analysis, 405 Lancet 469, 469 (Feb. 8, 2025). If indirect deaths from destroyed health care infrastructure, lack of shelter, illness, and related factors are included, the total death count attributable to Israel’s military actions may exceed 186,000. See Rasha Khatib, Martin McKee & Salim Yusuf, Counting the Dead in Gaza: Difficult but Essential, 404 Lancet 237, 237 (July 10, 2024).Show Moreand left over two million on the brink of famine and disease.⁴ 4.See Mark Landler, Nowhere to Go: How Gaza Became a Mass Death Trap, N.Y. Times (Oct. 7, 2024), https://www.nytimes.com/2024/10/07/world/middleeast/gaza-civilians-deaths‌-israel-war.html; Matthew Mpoke Bigg, Gazans Are so Malnourished that They Could Face Famine, Report Warns, N.Y. Times (Oct. 18, 2024), https://www.nytimes.com/2024/10/17/w‌orld/middleeast/gaza-malnourished-famine-warnings.html.Show MoreThe scale of destruction has been so vast that a United Nations Special Rapporteur has concluded that there are “reasonable grounds” to believe that Israel has been committing genocide in Gaza,⁵ 5.Francesca Albanese, Hum. Rts. Council, Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, at 1, U.N. Doc. A/HRC/55/73 (July 1, 2024) https://www.un.org/unispal/document/anat‌omy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-versio‌n-a-hrc-55/ [https://perma.cc/7HHL-87FE].Show Moreand at least one U.S. Federal District Court has likewise found that Israel’s actions “may plausibly constitute a genocide in violation of international law.”⁶ 6.Def. for Child. Int’l-Palestine v. Biden, 714 F. Supp. 3d 1160, 1163 (N.D. Cal. 2024).Show More

This devastating war on Gaza has inspired widespread protests in support of Palestine on campuses and in cities across America,⁷ 7.See A Snapshot of Support for Palestinians Across America, N.Y. Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/04/us/protests-israels-gaza.html; Colbi Edmonds, Anna Betts & Anemona Hartocollis, What to Know About the Campus Protests Over the Israel-Hamas War, N.Y. Times (Apr. 28, 2024), https://www.nytimes.com/2024/04/17/us/college-protests-israel-hamas-war-antisemitism.html.Show Morewhich has in turn elicited fierce backlash from defenders of Israel in government and other positions of authority.⁸ 8.See Lisa Lerer & Rebecca Davis O’Brien, In Protests Against Israel Strikes, G.O.P. Sees ‘Woke Agenda’ at Colleges, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/0‌1/us/politics/republicans-israel-war-protests-college-campuses.html.Show MoreMuch of this backlash has directly impinged upon academic freedom. While definitions of academic freedom may vary,⁹ 9.See, e.g., Erwin Chemerinsky, Education, The First Amendment, and the Constitution, 92 U. Cin. L. Rev. 12, 14 (2023) (treating academic freedom as “the belief that teachers should be able to express themselves in their classrooms and in their scholarship, and students should be able to express themselves as well”); Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal Educ. 530, 533 (2015) (conceptualizing academic freedom as the right of a scholar to pursue their research and ideas freely); Am. Ass’n of Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, https://www.aaup.org/report/‌1940-statement-principles-academic-freedom-and-tenure [https://perma.cc/VN9D-4V5T].Show Morethe concept should at least encompass the right of the academic community to engage in research, teaching, and debate to advance knowledge and understanding on matters of public concern. Responses to pro-Palestinian speech in higher education have clearly compromised these values. Students have been arrested and subjected to institutional sanctions;¹⁰ 10.See Where Protestors on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (July 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-colle‌ge-protests-encampments.html.Show Morefaculty members have been censured and terminated;¹¹ 11.Anemona Hartocollis, Professors in Trouble Over Protests Wonder if Academic Freedom Is Dying, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/us/faculty-protes‌ts-academic-freedom-tenure-discipline.html; see also Stephanie Saul, Columbia Professor Says She Was Pushed to Retire Because of Her Activism, N.Y. Times (Jan. 10, 2025), https://‌www.nytimes.com/2025/01/10/us/columbia-professor-katherine-franke-retires.html (detailing how Columbia University faculty members were subject to investigation based on their advocacy on behalf of pro-Palestinian students).Show Moreand universities have been threatened with the prospect of losing their federal funding and accreditation if they allow pro-Palestinian protests on campus.¹² 12.See Ed Pilkington, Republicans Threaten to Punish Colleges That Allow Pro-Palestinian Protests, The Guardian (Oct. 9, 2024, 5:00 AM), https://www.theguardian.com/us-news/2024/‌oct/09/republicans-crackdown-universities-pro-palestinian-protests.Show More

Many supporters of Israel contend that restrictions on pro-Palestinian advocacy at colleges and universities are justified, arguing that much of this speech is antisemitic and makes some Jewish students feel unsafe.¹³ 13.See Zach Montague, Campus Protest Investigations Hang Over Schools as New Academic Year Begins, N.Y. Times(Oct. 5, 2024), https://www.nytimes.com/2024/10/05/us/‌politics/college-campus-protests-investigations.html.Show MoreOthers have suggested that there is a double standard between racism and antisemitism at play when universities fail to condemn some forms of pro-Palestinian speech, especially when speakers express support for Hamas’s 2023 attack. For example, Berkeley School of Law Dean Erwin Chemerinsky asked in the pages of the New York Times if “anyone [thought] the officials would be silent if there was a Ku Klux Klan gathering on a college campus celebrating white supremacist violence?”¹⁴ 14.Erwin Chemerinsky, College Officials Must Condemn On-Campus Support for Hamas Violence, N.Y. Times (Oct. 20, 2024), https://www.nytimes.com/2024/10/20/opinion/hamas-colleges-free-speech.html. Black and Jewish student groups at Berkeley issued statements criticizing Chemerinsky’s piece, arguing that it “misappropriates Black suffering” and “weaponizes concerns for Jewish safety to manufacture further consent for a genocide.” Berkeley J. of Black L. & Pol’y & Berkeley L. Jews for Palestine, ‘Hypocritical and Insulting’: Black and Jewish Students at Berkeley Law Say Dean Chemerinsky Uses Them as Props to Vilify Palestine Solidarity Movement, Daily Californian (Oct. 25, 2024), https://www‌.dailycal.org/opinion/op-eds/hypocritical-and-insulting-black-and-jewish-students-at-berkele‌y-law-say-dean-chemerinsky-uses-them/article_9cbe4ccc-9299-11ef-bec1-83f03a661cc9.h‌tml [https://perma.cc/CY4X-M4VQ].Show MoreSimilarly, former Harvard University President Lawrence Summers declared it to be “inconceivable that the University would allow a Ku Klux Klan-allied student group to be recognized with access to funds and listservs.”¹⁵ 15.See Emma H. Haidar & Cam E. Kettles, Garber’s Statement on the PSC Ignites Controversy Over Institutional Voice Policy, Harv. Crimson (Oct. 10, 2024), https://www.thec‌rimson.com/article/2024/10/10/garber-psc-statement-institutional-voice/ [https://perma.cc/G‌VD6-U3G2].Show MoreThe implication seems to be that the kind of anti-Black speech associated with the Klan would never be tolerated on college campuses, and that racialized minorities have been a special favorite of legal and institutional protection against hateful expression.

The problem with this argument is that it is demonstrably false. Not so very long ago, during my own time as a Harvard undergraduate, the Institute of Politics invited former Ku Klux Klan Grand Wizard David Duke to speak at the University’s Kennedy School of Government—and apparently had the audacity to ask the Black Student Association to cosponsor the event.¹⁶ 16.See Anna D. Wilde, BSA Will Not Sponsor Duke, Harv. Crimson (Dec. 19, 1991), https://‌www.thecrimson.com/article/1991/12/19/bsa-will-not-sponsor-duke-pthe/ [https://perma.cc/‌FU7D-EQRB].Show MoreLeaders of student groups ranging from the Harvard Democrats to the Harvard Republican Club to Harvard-Radcliffe Hillel were all quoted as supporting Duke’s right to speak on campus even if they disapproved of his message.¹⁷ 17.See Jonathan Samuels, Campus Groups Unite to Protest Possible Duke Visit, Harv. Crimson (Feb. 22, 1992), https://www.thecrimson.com/article/1992/2/22/campus-groups-unit‌e-to-protest-possible/ [https://perma.cc/SJA5-YVPB].Show MoreA few months before that, a student was permitted to hang a Confederate flag from the entryway of her dormitory for several weeks despite its obvious connections to white supremacy and notwithstanding the strong objections and emotional pleas advanced by Black students.¹⁸ 18.See S. Allen Counter Jr., The Hurtful Confederate Flag at Harvard, Harv. Crimson (Oct. 22, 2015), https://www.thecrimson.com/article/2015/10/22/allen-counter-confederate-flag/ [https://perma.cc/DRN5-5KUH].Show MoreNor has toleration of racist imagery and rhetoric been confined to the university setting. To the contrary, free speech doctrines have broadly and consistently functioned to give white people the liberty to engage in hateful speech and to deny Black, Brown, and other racialized individuals the kinds of protection from fear and harm that supporters of Israel are now demanding. In other words, the Palestine Exception to free speech is real—and it is part of a deeper legal tradition that has enshrined free speech as an element of white privilege.

The remainder of this Essay illustrates the nexus between free speech and white privilege in the following way. Part I reviews the case law to document the courts’ consistent refusal to limit racist expression by white actors targeting racialized groups. Part II then analyzes the ways in which the law has racialized Palestinians and Muslims as being both worthy of condemnation by hateful speakers and undeserving of legal protection for their own advocacy. Part III situates attacks on pro-Palestinian speech in the context of the wider movement to silence critical voices and scholarship. Finally, this Essay concludes by emphasizing the importance of academic freedom as a means of amplifying suppressed voices and advancing narratives that challenge existing allocations of power and privilege.

1.  See Palestine Legal, The Palestine Exception to Free Speech: A Movement Under Attack in the US 4–5 (2015), https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/56‌0c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf [https://‌perma.cc/W4JT-79UR]. ↑
2.  See Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times (Dec. 22, 2023), https://www.nytimes.com/int‌eractive/2023/12/22/world/europe/beeri-massacre.html. ↑
3.  See Emma Graham-Harrison, The Devastating Impact of 15 Months of War on Gaza, The Guardian (Jan. 15, 2025, 2:26 PM), https://www.theguardian.com/world/2025/jan/15/the-dev‌astating-impact-of-15-months-of-war-on-gaza. This figure is based on reports from Gaza health officials. Id. An analysis by outside experts estimates that the number of deaths resulting from traumatic injury in Gaza is actually far higher, having reached 64,000 by June 2024. See Zeina Jamaluddine, Hanan Abukmail, Sarah Aly, Oona M R Campbell & Francesco Checchi, Traumatic Injury Mortality in the Gaza Strip From Oct. 7, 2023, to June 30, 2024: A Capture-Recapture Analysis, 405 Lancet 469, 469 (Feb. 8, 2025). If indirect deaths from destroyed health care infrastructure, lack of shelter, illness, and related factors are included, the total death count attributable to Israel’s military actions may exceed 186,000. See Rasha Khatib, Martin McKee & Salim Yusuf, Counting the Dead in Gaza: Difficult but Essential, 404 Lancet 237, 237 (July 10, 2024). ↑
4.  See Mark Landler, Nowhere to Go: How Gaza Became a Mass Death Trap, N.Y. Times (Oct. 7, 2024), https://www.nytimes.com/2024/10/07/world/middleeast/gaza-civilians-deaths‌-israel-war.html; Matthew Mpoke Bigg, Gazans Are so Malnourished that They Could Face Famine, Report Warns, N.Y. Times (Oct. 18, 2024), https://www.nytimes.com/2024/10/17/w‌orld/middleeast/gaza-malnourished-famine-warnings.html. ↑
5.  Francesca Albanese, Hum. Rts. Council, Anatomy of a Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, at 1, U.N. Doc. A/HRC/55/73 (July 1, 2024) https://www.un.org/unispal/document/anat‌omy-of-a-genocide-report-of-the-special-rapporteur-on-the-situation-of-human-rights-in-the-palestinian-territory-occupied-since-1967-to-human-rights-council-advance-unedited-versio‌n-a-hrc-55/ [https://perma.cc/7HHL-87FE]. ↑
6.  Def. for Child. Int’l-Palestine v. Biden, 714 F. Supp. 3d 1160, 1163 (N.D. Cal. 2024). ↑
7.  See A Snapshot of Support for Palestinians Across America, N.Y. Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/04/us/protests-israels-gaza.html; Colbi Edmonds, Anna Betts & Anemona Hartocollis, What to Know About the Campus Protests Over the Israel-Hamas War, N.Y. Times (Apr. 28, 2024), https://www.nytimes.com/2024/04/17/us/college-protests-israel-hamas-war-antisemitism.html. ↑
8.  See Lisa Lerer & Rebecca Davis O’Brien, In Protests Against Israel Strikes, G.O.P. Sees ‘Woke Agenda’ at Colleges, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/0‌1/us/politics/republicans-israel-war-protests-college-campuses.html. ↑
9.  See, e.g., Erwin Chemerinsky, Education, The First Amendment, and the Constitution, 92 U. Cin. L. Rev. 12, 14 (2023) (treating academic freedom as “the belief that teachers should be able to express themselves in their classrooms and in their scholarship, and students should be able to express themselves as well”); Robert C. Post, Academic Freedom and Legal Scholarship, 64 J. Legal Educ. 530, 533 (2015) (conceptualizing academic freedom as the right of a scholar to pursue their research and ideas freely); Am. Ass’n of Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, https://www.aaup.org/report/‌1940-statement-principles-academic-freedom-and-tenure [https://perma.cc/VN9D-4V5T]. ↑
10.  See Where Protestors on U.S. Campuses Have Been Arrested or Detained, N.Y. Times (July 22, 2024, 8:30 PM), https://www.nytimes.com/interactive/2024/us/pro-palestinian-colle‌ge-protests-encampments.html. ↑
11.  Anemona Hartocollis, Professors in Trouble Over Protests Wonder if Academic Freedom Is Dying, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/us/faculty-protes‌ts-academic-freedom-tenure-discipline.html; see also Stephanie Saul, Columbia Professor Says She Was Pushed to Retire Because of Her Activism, N.Y. Times (Jan. 10, 2025), https://‌www.nytimes.com/2025/01/10/us/columbia-professor-katherine-franke-retires.html (detailing how Columbia University faculty members were subject to investigation based on their advocacy on behalf of pro-Palestinian students). ↑
12.  See Ed Pilkington, Republicans Threaten to Punish Colleges That Allow Pro-Palestinian Protests, The Guardian (Oct. 9, 2024, 5:00 AM), https://www.theguardian.com/us-news/2024/‌oct/09/republicans-crackdown-universities-pro-palestinian-protests. ↑
13.  See Zach Montague, Campus Protest Investigations Hang Over Schools as New Academic Year Begins, N.Y. Times
    

    (Oct. 5, 2024), https://www.nytimes.com/2024/10/05/us/‌politics/college-campus-protests-investigations.html. ↑

14.  Erwin Chemerinsky, College Officials Must Condemn On-Campus Support for Hamas Violence, N.Y. Times (Oct. 20, 2024), https://www.nytimes.com/2024/10/20/opinion/hamas-colleges-free-speech.html. Black and Jewish student groups at Berkeley issued statements criticizing Chemerinsky’s piece, arguing that it “misappropriates Black suffering” and “weaponizes concerns for Jewish safety to manufacture further consent for a genocide.” Berkeley J. of Black L. & Pol’y & Berkeley L. Jews for Palestine, ‘Hypocritical and Insulting’: Black and Jewish Students at Berkeley Law Say Dean Chemerinsky Uses Them as Props to Vilify Palestine Solidarity Movement, Daily Californian (Oct. 25, 2024), https://www‌.dailycal.org/opinion/op-eds/hypocritical-and-insulting-black-and-jewish-students-at-berkele‌y-law-say-dean-chemerinsky-uses-them/article_9cbe4ccc-9299-11ef-bec1-83f03a661cc9.h‌tml [https://perma.cc/CY4X-M4VQ]. ↑
15.  See Emma H. Haidar & Cam E. Kettles, Garber’s Statement on the PSC Ignites Controversy Over Institutional Voice Policy, Harv. Crimson (Oct. 10, 2024), https://www.thec‌rimson.com/article/2024/10/10/garber-psc-statement-institutional-voice/ [https://perma.cc/G‌VD6-U3G2]. ↑
16.  See Anna D. Wilde, BSA Will Not Sponsor Duke, Harv. Crimson (Dec. 19, 1991), https://‌www.thecrimson.com/article/1991/12/19/bsa-will-not-sponsor-duke-pthe/ [https://perma.cc/‌FU7D-EQRB]. ↑
17.  See Jonathan Samuels, Campus Groups Unite to Protest Possible Duke Visit, Harv. Crimson (Feb. 22, 1992), https://www.thecrimson.com/article/1992/2/22/campus-groups-unit‌e-to-protest-possible/ [https://perma.cc/SJA5-YVPB]. ↑
18.  See S. Allen Counter Jr., The Hurtful Confederate Flag at Harvard, Harv. Crimson (Oct. 22, 2015), https://www.thecrimson.com/article/2015/10/22/allen-counter-confederate-flag/ [https://perma.cc/DRN5-5KUH]. ↑