Rep. Jason Smith's call for defunding colleges over protests raises First Amendment concerns

U.S. Rep. Jason Smith is one of several politicians in recent days calling for punitive actions against colleges that allow anti-Israel protests on their campuses.

At protests across the country, students have rallied for different types of actions regarding the conflict between Israel and Hamas in the Gaza Strip as civilian deaths climb.

Jason Smith

Jason Smith

The protests — and elected officials' reactions — have ignited First Amendment concerns, while also sparking debate of what constitutes antisemitic speech and threats.

First Amendment experts say the sentiments to defund colleges or deporting student protesters don't pass muster of First Amendment precedent established by the U.S. Supreme Court.

Former President Donald J. Trump, Florida Gov. Ron DeSantis and South Carolina U.S. Sen. Tim Scott — all three of whom are candidates for the 2024 Republican presidential nomination — were among those calling for stripping student visas of any foreign students protesting against Israel, a U.S. ally. Such protests have been interpreted by some as pro-Hamas or antisemitic. The anti-Israel sentiment falls on a spectrum, from demands for a cease-fire to the full support of Hamas, a terrorist organization, and further extends on the spectrum to hate speech. Some students are "against violence, but we're just asking for the lives of Palestinians to be acknowledged as well," Nadia Ali, a Columbia University student protester, told The Associated Press.

Meanwhile, Jewish students are seeking protection from universities.

NBC News reported that antisemitic incidents rose 388% since Oct. 7 — when Hamas members entered Israel and killed about 1,400 people, mostly civilians — adding that more than 100 colleges and universities nationwide had seen walkouts or planned walkouts in support of the Palestinian people.

Smith's comments

In addition to calling for stripping students' visa status, several officials, including Smith, have said colleges should face financial punishments for such protests.

"The Ways and Means Committee, the panel with sole jurisdiction over tax policy, will call in these schools because it is unacceptable that tax-funded universities are allowing student organizations to support terrorists. It is un-American," Smith said on Fox Business on Oct. 20. "We're going to be looking at the tax-free status of billion-dollar endowments, for instance. We're going to make sure these universities are held accountable. Unfortunately, these schools are more focused on pushing woke, liberal ideas across this country and ingraining these views into future generations of Americans."

Smith doubled down on his comments in written form. In a column published in the Southeast Missourian on Oct. 25, he wrote, "Congress and the American people will not forget on what side these institutions stood the day the largest number of Jewish people were killed since the Holocaust, and they must be held to account for their implicit, vile support of Hamas terrorists and violence against the people of Israel. Many of these organizations currently enjoy tax-exempt status in the United States, and their statements call into question the academic or charitable missions they claim to pursue. As the chairman of the Ways and Means Committee, I can promise that we will be looking further into what mission these universities are pursuing and will do everything we can to ensure our next generations are being educated — not indoctrinated — at the expense of American taxpayers."

Smith's office did not respond to a reporter's questions regarding how his suggestions would align with First Amendment protections or the newspaper's queries concerning enforcement of this policy, including how the government would determine which students were pro-Hamas vs. anti-war.

In his most recent column, published Oct. 31 in the Southeast Missourian, Smith wrote he was fighting for the First Amendment in other areas, focusing on his push against the government's efforts to "censor social media posts" regarding the government's efforts with social media companies to "fight misinformation".

In the column, Smith stated "government officials shouldn't be able to decide what is acceptable speech." He said he hopes the Supreme Court, regarding the government's intervention in social media, "will do the right thing and rule that the federal government's actions were unconstitutional, and make sure these attacks on our freedom of speech never happen again. ... I will fight tooth and nail to stop the Left's nonstop efforts to force their radical beliefs and liberal values."

SEMO protests

Southeast Missouri State University, the largest college in Smith's district, does not require students to state their cause during protests.

Citing the Missouri Campus Free Express Act, Southeast Missouri states "any person who wishes to engage in non-commercial expressive activity in the outdoor areas of the campus of the university shall be permitted to do so freely, as long as the person's conduct is not unlawful and does not materially and substantially disrupt the functioning of the university."

The policy covers many forms of demonstration, including rallies, speeches, sit-ins and more. The policy "encourages" providing prior notice to a campus office for scheduling purposes.

The Southeast Missourian requested comments through the university's assistant vice president for marketing and communications. The spokeswoman pointed the newspaper to the university's policy on protesting on campus, but did not respond to questions about whether the university had concerns about Smith's statements or whether the university was aware of any protests concerning the war.

First amendment precedent

While the pressures of government interference in social media are a fairly new phenomenon, protests of wars are part of the fabric of the United States' social history. The current war, like others before it, sparks strong emotions and opinions, especially now that videos of the war's human suffering are being shared on social media.

"I understand that what we're dealing with here is a legislator saying they would defund the university," said Kevin Goldberg, a First-Amendment attorney who works with the Freedom Forum, a not-for-profit organization that advocates for First Amendment freedoms. "I assume what he's thinking here is we have a much greater degree of control over the university as an educator rather than individual students or individual student groups. But I see all of these as First Amendment violations. The precedent from the Supreme Court on this is clear. You cannot punish students for what they say and what they believe in unless it falls categorically outside of the protection of the First Amendment. You can't single out one side of the debate vs. the other."

Goldberg cited two landmark decisions decided by the Supreme Court. The first is Healy vs. James, in which the court affirmed that college students' rights of speech and association apply to a state university campus like they do everywhere else. In that case, the school president had denied a left-wing student group its rights to protest, saying the group's philosophy was "antithetical to the school's policies". A year later, according to the Free Speech Center at Middle Tennessee State University, the University of Missouri was hit with a similar lawsuit, in which the court ruled that the Healy case made "clear that the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of 'conventions of decency'."

Goldberg also cited a 2010 case, Holder v. Humanitarian Law Project. In that case, Goldberg said, the Supreme Court declared that "what is punishable is material support for terrorists and terrorist organizations, not expressions of support for terrorist organizations. Material support requires actions beyond speech. Taking those two (Holder and Healy) together it seems pretty clear that what's being proposed here will not fly, whether it's deporting students or defunding student groups."

Smith was not alone in high-ranking politicians and lawmakers in their support of stripping funding from colleges.

Political push

Scott wrote on X, formerly known as Twitter, that "if the college coddles them, revoke their taxpayer funding. We must stand up against this evil anti-Semitism everywhere we see it — especially on elite college campuses."

Added Gov. Doug Burgum of North Dakota, a candidate for the 2024 GOP presidential nomination: "Anti-semitism cannot be tolerated. Period. The students responsible should be held accountable and if the university fails to do so it should lose any federal funding."

The Biden administration has announced plans to combat both antisemitism and Islamaphobia. Many Jewish students have expressed fearing for their safety, and argued that protests cross over the line to a form of harassment. Likewise, Muslim groups and organizations have expressed concerns about reports of abusive and threatening behavior as well.

The response to the Gaza conflict has highlighted the gray areas in the United States between speech and threats.

Lara Schwartz, an American University professor who is Jewish, told The Hill, a publication that focuses on Congress, in response to the debate over protest language, "It is important to understand that as a matter of the First Amendment, having an idea is very different than taking an action and having an idea is generally protected and conduct is not," Schwartz said. "The vocabulary is extremely contested here. What constitutes antisemitism, and when critiques of Israel as a country and a government crosses over into antisemitism, is a highly contested area. And it was before Oct. 7."