Abstract

Excerpted From: René Reyes, Free Speech as White Privilege: Racialization, Suppression, and the Palestine Exception, 111 Virginia Law Review Online 166 (June, 2025) (119 Footnotes) (Full Document)

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, but 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. In response, Israel has killed more than forty-six thousand Palestinians to date and left over two million on the brink of famine and disease. The 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, and 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.”

This devastating war on Gaza has inspired widespread protests in support of Palestine on campuses and in cities across America, which has in turn elicited fierce backlash from defenders of Israel in government and other positions of authority. Much of this backlash has directly impinged upon academic freedom. While definitions of academic freedom may vary, the 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; faculty members have been censured and terminated; and universities have been threatened with the prospect of losing their federal funding and accreditation if they allow pro-Palestinian protests on campus.

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. Others 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?” Similarly, 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.” The 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. Leaders 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. A 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. Nor 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.

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The Supreme Court once opined that academic freedom “is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” The wide-ranging campaign to silence pro-Palestinian speech shows how far we have deviated from those principles. There is indeed a pall of orthodoxy over American classrooms, campuses, and culture--an orthodoxy that presents the United States and Israel as exceptional places of freedom and democracy and racializes Muslims and Palestinians as threats to the civilized order. Those are pernicious and racist narratives, and they are situated in a legal context in which the scope and limits of freedom of expression have been defined in ways that promote white privilege over racial equality.

Counternarratives have the potential to destabilize these harmful structures at both the legal and cultural level. With respect to legal doctrine, critical scholarship can highlight the systemic inequities and racial inconsistencies that are endemic in Free Speech and other areas of jurisprudence. At the level of cultural discourse, scholars can also amplify the voices and experiences of those who have historically been marginalized or erased from the conversation. This Essay has endeavored to advance both of those goals in at least some small measure. But in order for these aspirations to be realized, counternarratives must be given “breathing space to survive.” Academic freedom can play a vital role in creating that breathing space. Scholars must have the courage and freedom to write; journals must have the courage and freedom to publish; students must have the courage and freedom to learn; and universities must have the courage and freedom to protect all of the above. Our collective humanity and decency may depend upon it.

Associate Professor, Suffolk University Law School., J.D. Harvard Law School, A.B. Harvard College.