A Response to the Bad Takes on the Pro-Hamas Student Encampment at UCLA

A Harsh Reality Check on This Week's Nonsense

With the establishment of a pro-Hamas encampment at UCLA and its subsequent removal by law enforcement last week after violent outbreaks, there have been no shortage of bad takes on the situation. Perhaps more disturbingly, silence by some government officials and organizations over various incidents on the UCLA campus has sent a message of tacit approval of bad acts depending on who committed them.

Certain politicians and groups who rushed to condemn the police for removing the encampment have been relatively silent about the harassment of Jewish students and violence directed at the counter protesters by pro-Hamas students in the encampment. Many pro-Israel politicians and groups have been relatively silent about the vigilante attacks against the pro-Hamas students.

At UCLA, university officials bent over backwards to accommodate the pro-Hamas encampment, one of many at college campuses across the country, ostensibly to prevent outbreaks of violence and avoid large scale police actions. Violence broke out anyway and a massive police response became necessary.

However, even before the outbreak of violence, other malfeasance took place that UCLA allowed to proceed. Pro-Hamas demonstrators began barring some students from attending classes held in the buildings surrounded by their encampment simply because those students were identified as Jewish.

When one barred Jewish student’s parent called the university to ask why her son was being blocked from entering the UCLA library, she was advised by a university official that he should simply use a different entrance. While this incident was captured on tape, many other Jewish and Israeli students at UCLA faced the same issue. It was not long before incidents of violence broke out.

At a large pro-Israel counter protest last Sunday, some counter protesters were brutally and viciously attacked. On Tuesday, a Jewish woman who works as a professor at UCLA was bludgeoned by pro-Hamas demonstrators after she went to counter protest at the encampment. Then, on Tuesday night, pro-Israel agitators showed up to met out street justice by violently attacking pro-Hamas demonstrators.¹

On Wednesday night, only in response to the previous night’s violence, UCLA finally removed the encampment. This required a massive law enforcement response, with significant police overtime paid for at taxpayer expense, and prompted endless complaints from elected officials and pro-Hamas demonstrators about civil liberties.

After police arrested the pro-Hamas encampment demonstrators, it was revealed that they had absolutely trashed the university’s iconic buildings and public spaces, which will also have to be cleaned up at taxpayer expense.

The general messages by governmental officials and organizations on what transpired include:

1. It was acceptable that pro-Hamas demonstrators physically blocked Jewish students from attending classes at UCLA on account of being Jewish.

2. The First Amendment protects vandalism and physically occupying university buildings.

3. Violence by pro-Israel agitators directed at the pro-Hamas demonstrators at the UCLA encampment was justified and acceptable behavior.

4. There need to be crackdowns on the pro-Hamas student encampments because their statements are “hate speech” unprotected by the First Amendment.

Yeah…..no. Just no.²

These talking points are maddening because they (1) seem to be dependent upon one’s view of the conflict in the Middle East, (2) display a general lack of knowledge about how constitutional rights work, (3) reflect a deep immaturity in many Americans, and (4) demonstrate inconsistency. And they require a more detailed response.

I. UCLA’s Constitutional and Legal Violations

By allowing the pro-Hamas encampment to remain even though UCLA was aware that participants were blocking Jewish students from attending class, UCLA violated the civil rights of Jewish students, violating numerous state and federal constitutional provisions and civil rights laws.

These include, but are not limited to, (1) the First Amendment,³ (2) the Fourteenth Amendment Equal Protection Clause,⁴ (3) Article I, Section 4 of the California Constitution,⁵ (4) Article I, Section 7 of the California Constitution,⁶ (5) the Equity in Higher Education Act,⁷ and (6) Title VI of the 1964 Rights Act.⁸

Each of these laws and constitutional provisions could be the subject of its own article. But I’ll simply note two additional constitutional amendments that prohibit what transpired at UCLA because they explicitly mention the University of California and are the most self-explanatory constitutional amendments.

Under Section 9 of Article XI of the California Constitution, the University of California may not keep students out of any university department “on account of race, religion, ethnic heritage, or sex.”⁹ Under Section 31 of Article I of the California Constitution, the University of California may “not discriminate against . . . any individual or group on the basis of race, sex, color, ethnicity, or national origin . . .”¹⁰

While the University of California may operate under an assumption that the California Constitution is akin to a stop sign in Italy (optional), they are required to follow the California Constitution.¹¹ Moreover, the fact that private actors, rather than university employees, directly engaged in this behavior is no defense for UCLA.

In the 1960’s, a number of local governments in the segregated south attempted to defy civil rights laws and the Fourteenth Amendment by outsourcing the job of enforcing segregation to private actors. The United States Supreme Court rejected these arguments, holding that the Fourteenth Amendment applied because the actions were still governmental in nature.¹²

Moreover, UCLA has control over their campus. They have a duty to ensure that all students may safely attend their classes, free of discrimination. They needed to do so by enforcing their own regulations that made the encampment illegal. UCLA was aware of the situation and yet refused to do anything about it.

And lest anyone have any confusion, requiring a Jewish student to use a separate entrance on account of being a Jew is still anti-Semitic discrimination.¹³ The legal doctrine of “separate but equal” has long been abandoned.¹⁴

In order to protect the rights of students and comply with the Constitution itself, UCLA needed to remove the encampment. The fact that they waited to remove the encampment while Jewish students were kept out of class is a violation of the rights of Jewish students at UCLA. What UCLA did is inexcusable.

II. Conduct v. Speech Under the First Amendment

Some have suggested that physically occupying campus areas, vandalism, and physical violence are protected First Amendment expression. Others have suggested that there is no First Amendment protection for expressive conduct.

Both of these takes are wrong.

Obviously, there are forms of expressive conduct that are protected under the First Amendment. The most famous example that comes to mind is the burning of the American flag, a right that is protected by the First Amendment.¹⁵ However, conduct does not become constitutionally protected speech just because someone expresses an idea when undertaking that conduct.¹⁶

Instead, courts employ a test to determine whether the expressive conduct is constitutionally protected. A restriction on expressive conduct will satisfy the requirements of the First Amendment if:

1. The regulation, law, or governmental action is within the constitutional power of the government;

2. The regulation, law, or governmental action furthers an important or substantial governmental interest;

3. That important or substantial governmental interest is unrelated to the suppression of free expression; and

4. The incidental restriction on First Amendment freedoms is no greater than essential to further that important or substantial governmental interest.¹⁷

Here, UCLA has a constitutional power to maintain the physical integrity of its campuses. It has a substantial and important interest in enabling its students to attend classes at the university and to do so without facing discrimination.

UCLA did not remove the encampment because the speech of those at the encampment was pro-Hamas. It did so because of the compelling need to protect student safety.

Moreover, removing the encampment did not restrict a student’s ability to advocate for Hamas. They just cannot do it while physically vandalizing the UCLA campus and physically blocking Jewish students from attending class.

III. Unprovoked Vigilante Violence is Never Acceptable

The impetus for UCLA finally removing the encampment was the violence that broke out late Tuesday night, during the 32nd anniversary of the 1992 Los Angeles Riots, when violent pro-Israel agitators attacked the encampment of pro-Hamas demonstrators at the UCLA campus. For over two hours, no police showed up while violence raged on live television.

This outbreak of violence was reminiscent of the initial outbreak of the 1992 Riots when rioters took over the intersection of Florence and Normandy and began pulling any non-black driver out of stopped cars to beat, rob, and, in some cases, torture them while the LAPD abandoned the intersection for hours and news helicopters captured it all for live television.

While some pro-Israel elected officials and organizations have condemned what occurred, others have been noticeably silent, almost seeming to give tacit approval to what happened.

Let’s be clear. What occurred is a crime.¹⁸ The pro-Israel agitators on Tuesday night had as much right to engage in the violent behavior against the pro-Hamas students as Damian ‘Football’ Williams and his friends had to commit wanton acts of violence against drivers at the intersection of Florence and Normandy on April 29, 1992.

And the pro-Israel agitators were as morally virtuous on Tuesday night as any of those individuals during the summer of 2020 who engaged in wanton acts of vandalism, arson, looting, and violence in response to the murder of George Floyd.

In both 1992 and 2020, some defended and justified unprovoked criminal actions, usually using pseudo-intellectual arguments amounting to nonsense coupled with ad hominem attacks against critics that were irrelevant and illogical (“That’s just your white privilege!”, “You’re denying oppression and discrimination!”, “Did you say anything or care back when…..”, etc.).

I always held firm in my condemnation of random criminality. It’s not okay to commit wanton acts of violence or destruction against innocent third parties simply because you’re angry and can identify some past atrocity committed against people of your same demographic. There is no excuse or justification for it.

I don’t change my position now simply because I find myself empathetic towards the pro-Israel agitators (who I suspect included a number of juvenile delinquents and 20 something thrill seekers who are genuinely offended over the non-stop anti-Semitism spewed at these demonstrations) and find myself generally disgusted by the opinions and general ignorance expressed by pro-Hamas students.

Statements that hurt your feelings, deeply offend you, or are made in complete ignorance, are not a provocation for violence. Words cannot physically harm you. Speech is not violence, regardless of how much you dislike it.

In a free society that is functioning, we accept that not everyone will say things that we will agree with. As adults, we learn to live with that reality and learn that violence is never an acceptable response.

One’s inherited trauma does not justify violence in response to speech either. It does not matter what your personal inherited trauma is, you still have an obligation to act as an adult and participate in society.

While defenders of the agitators could engage in pseudo-intellectual rationalizations by going on ad nauseum about the great evils done by the likes of Adolph Hitler, King Ferdinand II and Queen Isabella, Ayatollah Khomeini, Pope Urban II, Emperor Hadrian, and Czar Nicholas II, among numerous others, that’s really irrelevant. The aforementioned individuals were not present at UCLA on Tuesday night.

We all have agency and we all have personal responsibility. No one forced those pro-Israel agitators to show up at UCLA and engage in that kind of behavior. Faulting oppressors for one’s individual bad acts only empowers those oppressors and makes a mockery of the true suffering faced by Jews for several millennia.

Now, some might try to rationalize what occurred on the basis that the encampments were illegal and that UCLA was refusing to remove them. That argument falls flat. The encampment was likely illegal.¹⁹ But the law abhors self-help.²⁰ The pro-Israel agitators were not legally authorized to clear the encampment.²¹

Vigilantism should always be discouraged and is only ever appropriate in very limited circumstances (not present here). Legal methods were available. And the agitators were not there to protect counter protesters or escort Jewish students to class. It was 11 pm. Classes were over and the counter protesters had gone home.

The bludgeoning of the college professor who was counter protesting on behalf of Israel was terrible, as were other attacks on pro-Israel counter protesters. However, the agitators had as much right to exact group-based vengeance as those upset over the murder of George Floyd had a right to attack and burn down the Minneapolis 3rd Police Precinct in 2020. Random violence against assumed wrongdoers is not justice.

IV. Hate Speech is Protected Under the First Amendment

As I have written about previously, pro-Hamas speech is constitutionally protected.²² There is no “hate speech” exception to the Constitution.²³ Whether the First Amendment protects speech does not depend upon whether one subjectively evaluates speech as harmful.²⁴

Instead, the United States Supreme Court has made clear:

It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.²⁵

The fact that you’re personally offended by speech doesn’t mean that the government can ban it or punish it.²⁶ That doesn’t change just because the speech celebrates violence.²⁷ Nor does it change because the speech is exceptionally disgusting.²⁸

Now, some attempt to claim that hate speech they dislike can be made illegal because it is criminal incitement to violence. For example, Congressman Jared Moskowitz (D-Florida) confidently declared on Thursday afternoon that it was illegal for students to call for burning Tel Aviv to the ground.

This is legally incorrect.

In order for speech to legally constitute criminal incitement to violence in the United States:

1. The speech must do more than advocate for legalizing a crime or even call for criminal acts in the future; the speech must directly call for imminent lawless action.

2. The speech must be reasonably likely to incite imminent lawless violence.²⁹

If a prosecutor cannot prove both of these prongs, the First Amendment prohibits a prosecution for criminal incitement.³⁰

This test comes from the United States Supreme Court case, Brandenburg v. Ohio,³¹ where Ku Klux Klan members were convicted for holding a rally, where displaying their firearms and burning a large cross, they called for massive marches on major U.S. cities, used racial slurs, and called for the deportation of all Jews to Israel and all Blacks to Africa.³² The Court overturned their convictions for incitement.³³

Under Brandenburg, even the increased likelihood of listeners committing criminal acts is insufficient to punish a person for the speech in question.³⁴ For speech to be illegal criminal incitement, the speaker must have specific intent to incite others to commit a crime.³⁵

It is not reasonably imminent that Tel Aviv will be burnt to the ground just because a bunch of spoiled rotten, ignorant, woke, faux-progressive college students engaging in self-centered delusion are chanting it on one of our country’s elite college campuses.³⁶ Their chant, while offensive, is at most hyperbole, which is also protected speech under the First Amendment.³⁷

V. A Parting Thought

We need a reality check. It’s become apparent that we are no longer raising adults in this country - at least not those who attend our nation’s highest ranked universities. It’s also apparent that we are lacking leadership when it comes to responding to student led protests and resulting violence related to the Israel-Gaza War.

It seems that rather than address or debate the issues surrounding the Israel-Gaza War, advocates spend most of their time attempting to find examples of wrongdoing and cringeworthy comments by advocates on the other side in order to win their arguments. There is no advocacy.

This is mimicked by leaders who advocate for things that violate the First Amendment, ignore the legal responsibilities of educational institutions, make up non-existent rights, and tacitly ignore bad actions of those who happen to agree with them. In other words, they fail to act like adults.

In this situation, certain realities exist regardless of how one feels about the Israel-Gaza War.

UCLA could not allow its Jewish students to be discriminated against and should never have allowed an illegal encampment on its campus to last for a week. Whatever the crimes of those in the encampment, the vigilante violence against them was unlawful. While their speech was offensive, patently offensive and hateful speech is fully protected under the First Amendment.

Reasonable people will disagree on the Middle East conflict. But we should remember our values, and not abandon our laws in the process. To those who want to do that in this situation, I quote gay Tik Tok/Instagram influencer and fashion model, A.J. Sanchez, “Do Better.”

1. https://www.nytimes.com/interactive/2024/05/03/us/ucla-protests-encampment-violence.html

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.