By DAVID E. BERNSTEIN, DAVID L. BERNSTEIN

The Hamas-led massacre in Israel on Oct. 7, 2023, horrified many and in particular the Jewish world. What followed on American college campuses also shocked American Jews. Rather than mourning or condemning Hamas’s atrocities, many individuals and student groups celebrated them, excused them or blamed Israel.

Conflicted Jewish Response

Chants of “globalize the intifada” and “from the river to the sea” spread across universities. Students praised “martyrs” and justified violence. Some mocked or denied the mass rapes and kidnappings that occurred. Jewish students, especially at elite campuses where they had long felt secure, found themselves harassed, pushed, spat on, and, in some cases, physically assaulted. They were sometimes prevented from entering school libraries or classrooms unless they condemned Zionism.

What makes this moment urgent is the contradiction between two core commitments: strong support for the freedom of speech, and the need for universities to protect Jewish students from discrimination and threats.

We come from different backgrounds. David E. is a libertarian-leaning law professor; David L. is a moderate Democrat and longtime Jewish communal professional. As we discussed in a recent article for the Harvard Journal of Law and Public Policy, we agree on this: Protecting free expression and fighting anti-Semitism are not mutually exclusive. Liberal values are historically the most reliable protection for Jews.

Decline Of Liberal Norms

The surge of anti-Semitism since Oct. 7 is not only about the Middle East but reflects a broader trend, the decline of liberal norms on campus. Jewish students are caught in the crosshairs of a movement that rejects open debate, enforces ideological orthodoxy and treats dissenters as moral enemies.

This should alarm all Americans, though Jews feel it acutely. Jews have flourished in liberal societies where open inquiry and equal protection prevailed. When those norms weaken, Jews are often the first to suffer. Defending free speech and civil rights is not just an abstract principle. It is, to borrow a familiar phrase, good for the Jews.

Violations Of Campus Rules

Let us begin with the obvious. Assaulting Jewish students, defacing Hillel buildings, shouting threats, occupying academic buildings and blocking access to exams are not protected speech. They are violations of campus rules and, in many cases, of criminal law.

Yet university officials have often hesitated to act. Some say they fear infringing on protest rights. But this is a false dilemma. Universities already apply reasonable, content-neutral rules regulating the time, place and manner of protests. If white supremacists or anti-abortion activists disrupted campus life the way some anti-Israel protesters have, they would face consequences. The rules must be applied consistently.

A federal judge in California recently issued a preliminary injunction against the University of California, Los Angeles, noting that Jewish students had been excluded from parts of campus because they refused to denounce Zionism. “This fact,” the court wrote, “is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating.” The university’s failure to act was abdication, not neutrality.

Not The Answer?

Not all of the speech involves violence or harassment. Some of it, like chants celebrating the Oct. 7 attack, glorifying Hamas “martyrs” or expressing hatred for Israel, is protected by the First Amendment, however offensive.

We believe universities should not try to suppress this kind of speech, not because we endorse the messages, but because censorship would do more harm than good. Universities must remain places where ideas, even vile ones, can be debated and countered. Otherwise, power and not truth determine who gets to speak.

To be clear, this does not mean universities are powerless. Universities can, indeed must, enforce civil rights laws when protected speech crosses the line into discriminatory conduct.

Double Standard

Yet too often, Jewish students face a double standard. Speech that offends other minority groups is quickly condemned, investigated or punished. But when the targets are Jews, administrators suddenly rediscover the importance of free expression.

We agree that universities should not punish students for offensive political views. If they do punish such speech, they must apply the same standards to anti-Semitic expression. Anything else is discrimination.

Here we diverge slightly. David L. argues that we should always push universities to “level up” their commitment to free expression, even when they apply it inconsistently. The solution is not to censor more speech, but to protect more speech, equally.

David E. agrees in principle, but adds that if a university refuses to treat Jews the same way it treats other minorities, then Jewish advocates have every right to demand enforcement of the same standards. Tolerating discrimination against Jews, even in the name of liberalism, may entrench second-class status for Jews.

Then there is faculty speech. Professors are free to express unpopular or offensive views, including anti-Zionist ones. Still, there are limits. If a professor announces that he or she will not call on “Zionist” students or cannot grade them fairly, they have crossed the line into misconduct.

At Johns Hopkins University, a teaching assistant posted a poll asking whether she should downgrade Zionist students’ grades. At Muhlenberg College, a tenured professor reposted a screed urging others to make Zionist students feel unwelcome and excluded from campus spaces. These are not abstract statements. They imply intent to discriminate.

Enforcing Rules

Universities should not punish professors for political opinions, but they must ensure that faculty uphold their responsibilities to treat all students equally. When speech indicates a likelihood of bias or exclusion, administrators must investigate and act on the results.

The way forward is not to abandon liberal values in pursuit of short-term victories. It is to reclaim those values and demand that institutions of higher learning live up to them. This means enforcing existing rules against violence, vandalism and disruption, regardless of who commits the offense. It means requiring that faculty and staff treat all students equally. It means ensuring that Jewish students are not made to feel like second-class citizens. And above all, it means defending free expression, even when we hate what’s being said.

This approach may not satisfy those who want universities to ban anti-Semitic slogans outright. But it is the right approach, morally and strategically. Liberalism is what has allowed American Jews to thrive. Weakening it, even in the name of protecting Jews, would be a self-defeating move.

We support free speech liberalism not only because it is right but because it has worked. Jews have thrived in liberal societies governed by the rule of law, open debate and institutional fairness. When those pillars weaken, anti-Semitism grows.

What we are witnessing on campus is not just a wave of anti-Israel sentiment. It is part of a larger assault on liberalism itself. That is why we must defend liberal principles, not only to protect Jewish students but to preserve the conditions under which American Jewry has flourished.