The Volokh Conspiracy - Anti-Palestinian Fliers Lead to Calls for Police Investigation; Police Say The Fliers Are Free Speech:

The University of Maryland Diamondback reports:

University of Maryland Palestinian students and supporters were confronted with malevolent opposition Tuesday in the form of posters bearing vivid anti-Palestine propaganda that students said made them feel threatened, though it did not stop Palestinian Solidarity Week from continuing Wednesday night....

One such flier depicted a woman, wearing a traditional Muslim burqa and holding an AK-47 in one hand and a bomb-toting baby in the other. "What did she teach her child today?" was written above the picture.

This poster and others like it were found after Tuesday's "What would MLK Say About Gaza?" event, which was hosted by several student organizations....

Senior dietetics major Gisica Abdallah was at Tuesday's event — which was held in Jimenez Hall — when her friends brought the posters to her attention....

"They were everywhere," Abdallah said. "The hatred that was portrayed, that was the most hurtful thing."

Abdallah then began tearing down as many signs as she could before running to the Stamp Student Union, where she brought the fliers to Vice President for Student Affairs Linda Clement.

"[The posters] made a number of our students feel very uncomfortable," Clement said. "We have been doing things all day to investigate the incident. ... We have people examining surveillance tapes in the union and will be working with University Police to try and figure out who did this." ...

A University of Maryland Police spokesman reports that the department concluded that, "Basically, these fliers were free speech, [p]lain and simple."

But the university administration seems to take a different view:

The fliers ... were in violation of the university's policy on free speech ....

"There's such a thing as free speech," [Vice President for Student Affairs Linda Clement] said. "But when you post things anonymously and make others feel threatened, that's not free speech."

A few thoughts:

1. If the signs were in violation of a valid and content-neutral posting policy (e.g., that one can't post signs on building walls), they might indeed be properly punished, and removed.

2. Likewise, if there was a policy banning anonymous postings on university bulletin boards, it might be constitutional. The government may not ban anonymous speech generally, but it's possible — though not fully settled — that the university may indeed restrict anonymous posting on property that it voluntarily opens up for student access. This wouldn't make the posters illegal (unless they were seen as some sort of trespass, which I doubt), but perhaps it might justify the removal.

3. But if those aren't the rationales, and the university views the posters as unprotected — and is willing to countenance their removal by students — because of the message they express, then the university may do so only if the speech really falls within the narrow First Amendment exception for threats. Judging by the newspaper account, and by the police department's conclusion, there seems to be no evidence of that here. If any of you can point me to the actual posters involved, I'd love to analyze them (and link to them so readers can make the judgment for themselves).

Of course, there's the now customary quote about the "difference between free speech and hate speech":

"There is a difference between free speech and hate speech," said government and politics and Spanish language and literature major Sana Javed, who helped to organize Palestinian Solidarity Week. "They were an irrelevant commentary on Islam, but we were talking about politics."

No, there is no such difference under First Amendment law. Nor does First Amendment law draw a distinction between "commentary on Islam" (or Christianity or Judaism or atheism or whatever else) and "talking about politics," since much commentary on religion is commentary on politics.

	[Eugene Volokh, March 17, 2009 at 5:25pm] Trackbacks Anti-Palestinian Fliers Lead to Calls for Police Investigation; Police Say The Fliers Are Free Speech: The University of Maryland Diamondback reports: University of Maryland Palestinian students and supporters were confronted with malevolent opposition Tuesday in the form of posters bearing vivid anti-Palestine propaganda that students said made them feel threatened, though it did not stop Palestinian Solidarity Week from continuing Wednesday night.... One such flier depicted a woman, wearing a traditional Muslim burqa and holding an AK-47 in one hand and a bomb-toting baby in the other. "What did she teach her child today?" was written above the picture. This poster and others like it were found after Tuesday's "What would MLK Say About Gaza?" event, which was hosted by several student organizations.... Senior dietetics major Gisica Abdallah was at Tuesday's event — which was held in Jimenez Hall — when her friends brought the posters to her attention.... "They were everywhere," Abdallah said. "The hatred that was portrayed, that was the most hurtful thing." Abdallah then began tearing down as many signs as she could before running to the Stamp Student Union, where she brought the fliers to Vice President for Student Affairs Linda Clement. "[The posters] made a number of our students feel very uncomfortable," Clement said. "We have been doing things all day to investigate the incident. ... We have people examining surveillance tapes in the union and will be working with University Police to try and figure out who did this." ... A University of Maryland Police spokesman reports that the department concluded that, "Basically, these fliers were free speech, [p]lain and simple." But the university administration seems to take a different view: The fliers ... were in violation of the university's policy on free speech .... "There's such a thing as free speech," [Vice President for Student Affairs Linda Clement] said. "But when you post things anonymously and make others feel threatened, that's not free speech." A few thoughts: 1. If the signs were in violation of a valid and content-neutral posting policy (e.g., that one can't post signs on building walls), they might indeed be properly punished, and removed. 2. Likewise, if there was a policy banning anonymous postings on university bulletin boards, it might be constitutional. The government may not ban anonymous speech generally, but it's possible — though not fully settled — that the university may indeed restrict anonymous posting on property that it voluntarily opens up for student access. This wouldn't make the posters illegal (unless they were seen as some sort of trespass, which I doubt), but perhaps it might justify the removal. 3. But if those aren't the rationales, and the university views the posters as unprotected — and is willing to countenance their removal by students — because of the message they express, then the university may do so only if the speech really falls within the narrow First Amendment exception for threats. Judging by the newspaper account, and by the police department's conclusion, there seems to be no evidence of that here. If any of you can point me to the actual posters involved, I'd love to analyze them (and link to them so readers can make the judgment for themselves). Of course, there's the now customary quote about the "difference between free speech and hate speech": "There is a difference between free speech and hate speech," said government and politics and Spanish language and literature major Sana Javed, who helped to organize Palestinian Solidarity Week. "They were an irrelevant commentary on Islam, but we were talking about politics." No, there is no such difference under First Amendment law. Nor does First Amendment law draw a distinction between "commentary on Islam" (or Christianity or Judaism or atheism or whatever else) and "talking about politics," since much commentary on religion is commentary on politics.