Protestors who set up encampments and siege buildings should be prosecuted to the fullest extent, under both the law and their institutions’ codes of conduct.
Failing to do so undermines a fundamental commitment of liberal democracy: no person is above the law. Despite ill-informed assertions to the contrary, encampments and sieges are not protected by the First Amendment. They are permissibly regulated under content-neutral time, place, manner restrictions.
Restrictions on the time, place, and manner of conduct otherwise protected under the First Amendment are permitted under specific conditions: the restriction must be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communicating the speaker’s message. Prohibitions on encampments on college campuses easily meet these criteria.
The prohibitions are content neutral because all are prohibited, regardless of race, sex, religion, or political preference. They’re narrowly tailored to serve a significant governmental interest because ensuring equal access to public space is a clear and consistent governmental interest (e.g., access to parks, roadways, the list goes on). And the restrictions leave open ample alternative channels because protestors can still protest on campus; they are only prevented from forcibly occupying public space to the exclusion of others.
Imagine a different group of “anti-Zionists” physically occupying college campuses, besieging buildings, and preventing students from attending class. Perhaps these “anti-Zionists” wear white cloaks and pointy white hats. Should they escape prosecution under the guise of free speech? The same would be true if the besiegers wore kippahs and tzitzit. Keffiyehs are not an exemption ticket.
Fanatics of all sorts are the same: they all think the law applies to thee and not to me. But we are a nation of laws, not of men. When you pillage and destroy property, you must be held accountable, even if you believe doing so advances social justice. When you infiltrate the Capitol to obstruct the peaceful transfer of power, you must be held accountable, even if you believe the election was stolen. A sincere belief in the justness of one’s cause is no excuse. Actions have consequences.
Now is the time to reaffirm our commitment to the bedrock principle that no person is above the law. There is no greater force for unity than that. Neither a sincere belief in the righteousness of a cause nor the popularity of a cause can overcome the need to do what is right.
Branden Nikka was born and raised in Los Angeles and is a graduate of USC and UCLA School of Law. Branden’s opinions are his own and do not reflect those of his friends, family, or employer.
