I’ve recently heard some people (serious people, though not First Amendment experts) argue that private universities have a duty to suppress certain types of anti-Semitic speech—or, more broadly, anti-Israel speech—when it creates “Hostile educational environment based on national origin.” Title VI of the Civil Rights Act of 1964 prohibits race and national origin discrimination in federally funded programs, which courts have interpreted to require such programs, including universities, to prevent such hostile environments. And, this particular argument is, Applying this legal requirement to anti-Semitic/anti-Israel speech does not violate the First Amendment because the First Amendment does not apply to private universities.
I think this statement is wrong because it misunderstands the essence of the “act of state” doctrine. Indeed, the First Amendment generally does not protect speakers be opposed to Private actions (private universities, private employers, private social media platforms, etc.). But it does protect the speaker from government Threats of civil liability (or withdrawal of federal funds) under Title VI are government actions. This protection extends even if the speaker is located on private property.
Consider some familiar examples. Does the First Amendment protect speech in advertising? New York Times? Well, it doesn’t protect such speech from era” Editorial decision; you and I have no First Amendment right to compel era to host our speech. However, when the government imposes civil liability on such speech, that civil liability may violate the First Amendment because it is imposed by the government. Of course, these are facts New York Times Co. v. Sullivan (1964); note that the defendants were not only the newspapers but also the individuals responsible for the advertisements.
Does the First Amendment protect publishers from distributing books through private bookstores? Well, it doesn’t protect bookstore distribution from a bookstore’s choice of which books to carry; publishers have no First Amendment right to force bookstores to sell their books. But when the government threatens to punish bookstores for such speech, that threat may violate the First Amendment because it is the government that is complicit in the threat. These are all facts Bantam Books, Inc. v. Sullivan (1963). (As far as I know, the presence of the two Sullivans is just a coincidence.)
Does the First Amendment protect speech on private land? Well, it doesn’t protect that speech from the landowner’s decisions about what to exclude; for example, the Ku Klux Klan had no First Amendment right to coerce property owners in Cana, Virginia black v. virginia (2003) to let them use his land. (Some state laws may require large private shopping mall owners or private university owners to provide speakers with fair access to certain open spaces; but those speakers would have state law rights, not First Amendment rights.) But when When the government prosecuted Barry Black, he violated the First Amendment by burning crosses on the property with the landowner’s permission.
Turning to recent news, does the First Amendment protect advocacy groups’ access to financial services? Well, it doesn’t protect financial services companies from decisions they make on their own; a bank or insurance company itself doesn’t violate the First Amendment because it itself chooses to refuse to do business with an advocacy group. But when the government allegedly threatened the companies with retaliation unless they cut ties with the NRA, the court agreed NRA v. Uro (2024) THESE ALLEGATIONS governmental Stress can be the basis for a First Amendment claim against the government. (Please note that I am the NRA’s attorney of record, but I expect almost any First Amendment expert to describe this case the same way I do.)
Of course, this also applies to private universities. Students generally do not have First Amendment rights against private universities: Private universities can suppress student speech that expresses anti-Semitic, anti-Israel, anti-American, anti-Christian or anti-police views (or supports those views) without violating the First Amendment. But when the government allows lawsuits against private universities for tolerating such speech, or threatens to withdraw federal funds from private universities for tolerating such speech, government Action must comply with the First Amendment.
In all fairness, one could argue that the government’s actions are still permissible, whether based on the theory that there should be a “harassment” exception to the First Amendment or based on the government’s narrow interest in prohibiting certain publicity in universities. Other similar reasons. (I generally disagree with these arguments and believe there is no “hate speech” exception or “harassment” exception to the First Amendment, but I appreciate that they have been and will be made.)
But all of these arguments require that this Title VI hostile educational environment theory must be judged according to First Amendment standards. I don’t think there is any reasonable argument for this Chapter 6 theory government imposed responsibilities and Government pressures universities to restrict speech Private universities are not subject to First Amendment scrutiny. That speech can be restricted by a private owner on private property does not mean it can be restricted by the government on the same property.
