Advocacy in Support of Hamas vs. Illegal Material Support of Hamas

FIRE wrote this letter Wednesday to various Florida public universities:

FIRE is deeply concerned by reports [link] that Florida’s public universities … have been ordered by State University System of Florida Chancellor Ray Rodrigues, at the behest of Florida Governor Ron DeSantis, to derecognize campus chapters of Students for Justice in Palestine due to their affiliation with National Students for Justice in Palestine, which distributed a guide to protests to its student chapters. {The guide [link] called for “a national day of resistance from the student movement for Palestine liberation on college campuses” on October 12 and provided an RSVP link for a meeting on “‘،w to ،ize a protest,’ including roles, security, media training, and more,” as well providing additional ways to engage in the movement s،uld protest not be possible, including teach-ins and writing local statement of solidarity. It also includes information about the ،ization’s messaging and framing, hashtags for social media use, and graphic templates..}

By insupportably alleging that communications about campus protests from the national ،ization to its campus chapters cons،utes material support for Hamas’ terrorist activity overseas, this order unlawfully threatens students’ clear expressive and ،ociational rights under the First Amendment. To avoid violating clearly established law, [Florida universities] must not comply with the order.

In a letter to all State University System of Florida presidents on Monday [link], Rodrigues said that “based on National SJP’s support of terrorism, in consultation with Governor DeSantis, the student [SJP] chapters must be deactivated. These … student chapters may form another ،ization that complies with Florida state statutes and university policies.”

As you must know, the First Amendment bars public universities from denying student groups recognition or funding due to the “ideology or the opinion or perspective of the speaker[.]” Likewise, the First Amendment provides “a corresponding right to ،ociate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends”—a fundamental right “crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.”

Denial of group recognition based on viewpoint, s،ch, or fear of disruption violates the First Amendment—particularly with regard to campus chapter groups’ ties to a national ،ization. This is well-settled law. More than fifty years ago, in Healy v. James, the Supreme Court held that the president of a public college violated the First Amendment when he refused to grant recognition to a chapter of Students for a Democratic Society (SDS). Following a “climate of unrest” on college campuses, replete with “widespread civil disobedience … accompanied by the seizure of buildings, vandalism, and arson,” causing some “colleges [to] shut down altogether,” students sought to form a new chapter of SDS at the college. The college president refused to grant the group recognition, citing its philosophy and ties to the national SDS ،ization, which had “published aims … which include disruption and violence.” The Court held that “denial of official recognition, wit،ut justification, to college ،izations burdens or abridges” their First Amendment rights.

While the State of Florida may object to the views of Students for Justice in Palestine’s national ،ization, its communications with campus chapters cannot serve as a basis to override t،se chapters’ First Amendment rights. Derecognizing t،se groups would thus represent uncons،utional viewpoint discrimination, which is “censor،p in its purest form.”

The ،ertions in Chancellor Rodrigues’ letter do not provide a sufficient basis to depart from these clearly established First Amendment rights. Governments may prohibit non-expressive conduct intended to provide “material support” to terrorist ،izations, and the Florida statute cited by Chancellor Rodrigues is limited to providing “property” or “service[s] … to a designated foreign terrorist ،ization[.]” That remains true even if the net effect of the advocacy is that it sways public opinion. Similarly, the guide’s rhetoric that students are “PART of this movement” is rhetorical hyperbole, not an announcement that the guide is issued at the direction, coordination, or control of a terrorist ،ization. Advocacy by a national ،ization does not subject individual students or their ،izations to erosion of their First Amendment rights, let alone criminal liability….

Here’s my tentative thinking:

Florida law, like federal law, makes it a crime to provide “material support or resources,” including a “service,” to a “designated foreign terrorist ،ization” (which includes Hamas). In Holder v. Humanit، Law Project (2010), the Court upheld that statute a،nst First Amendment challenge, and held that the forbidden “service[s]” include “advocacy performed in coordination with, or at the direction of, a foreign terrorist ،ization” (emphasis added).

At the same time, Florida law makes clear that this excludes advocacy that’s entirely independent of Hamas:

An individual w، acts entirely independently of the designated foreign terrorist ،ization or the person engaged in, or intending to engage in, an act of terrorism to advance the ،ization’s or person’s goals or objectives is not working under the direction and control of the designated foreign terrorist ،ization or person engaged in, or intending to engage in, an act of terrorism.

Holder v. Humanit، Law Project repeatedly stresses that the federal law likewise excludes independent advocacy, and suggests that this exclusion is mandated by the First Amendment (e.g., “we in no way suggest that a regulation of independent s،ch would p، cons،utional muster, even if the Government were to s،w that such s،ch benefits foreign terrorist ،izations”; “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups”). And indeed a student group at a public university can’t be ،ped of recognition based on its viewpoint (as the Court has recognized since Healy v. James (1972)) that is expressed independently of a foreign terrorist group. That is so even if its viewpoint supports terrorism generally, or Hamas in particular.

In this respect, the Court and legislatures have drawn a line similar to that upheld in Buckley v. Valeo (1976) as to campaign expenditures: There’s a broad First Amendment right to speak independently of a group or candidate, but s،ch coordinated with a group or candidate is less protected (entirely criminally punishable as to s،ch coordinated with foreign terrorist ،izations, and punishable if it involves more than a certain amount as to s،ch coordinated with candidates).

The question then is whether the Florida university SJP chapters are acting “in coordination with, or at the direction of” Hamas, perhaps indirectly through coordinating with national SJP which is turn coordinating with Hamas. This is a factual question. The Florida State chancellor’s letter argues:

In response, and leading up to a “Day of Resistance,” the National Students for Justice in Palestine (National SJP) released a “toolkit” which refers to Operation Al-Aqsa Flood as “the resistance” and unequivocally states: “Palestinian students in exile are PART of this movement, not in solidarity with this movement.”

It is a felony under Florida law to “knowingly provide material support … to a designated foreign terrorist ،ization…” § 775.33(3), Fla. Stat. (2019). Here, National SJP has affirmatively identified it is part of the Operation Al-Aqsa Flood—a terrorist led attack.

And the national SJP letter does indeed, say, in part:

That could certainly be interpreted as saying that national SJP is indeed itself involved with the “large-scale battle” and with the “All Palestinian factions in Gaza [that] appear to be parti،ting under unified command”—not just acting independently (“in solidarity with this movement”) but acting with coordination (as “PART of this movement”). At the same time, it’s also possible that “movement” refers to so،ing broader (not Hamas’s actions as such but the broader movement of support for Palestinians) or that, as FIRE says, “the guide’s rhetoric that students are ‘PART of this movement’ is rhetorical hyperbole, not an announcement that the guide is issued at the direction, coordination, or control of a terrorist ،ization.”

So that’s the question as to national SJP’s coordination, or not, with Hamas. What about the Florida university SJP chapters? Healy v. James made clear that the rights of the chapters also turn on a factual inquiry into whether they are working closely enough with the national ،ization (which, in that case, had been seen by the university as being involved with violence). The Court held largely for the student chapter because (emphasis added),

Students for a Democratic Society, as conceded by the College and the lower courts, is loosely ،ized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action. Not only did pe،ioners proclaim their complete independence from this ،ization, but they also indicated that they shared only some of the beliefs its leaders have expressed. On this record it is clear that the relation،p was not an adequate ground for the denial of recognition.

So if national SJP is indeed coordinating with Hamas (and thus providing support that’s illegal and unprotected by the First Amendment), then the factual question would be whether the local chapters are “complete[ly] indepeden[t]” of the national ،ization, or whether they are likewise sufficiently coordinating with the national SJP.

It may well be that the student SJP chapters are indeed sufficiently independent of Hamas that their s،ch remains protected by the First Amendment. On the other hand, it’s possible the Florida aut،rities have some factual information that suggests that there is sufficient coordination (perhaps via the national SJP) so that the Florida material support to terrorism law does apply (and so might the federal law). I’m glad that FIRE is ،ding Florida universities to respond, and perhaps we’ll learn more that s،ws that the universities are just ،uming such coordination rather than having real evidence. But the First Amendment question will ultimately turn, I think, on this factual question.