BY JOHN K. WILSON

On January 19, 2024, PEN America held a major summit on free expression at Harvard University. But it seems top administrators at Harvard are the ones who really need a lesson on the topic, since that same day they announced a new “Guidance on Protest and Dissent” that restricts the right to protest on campus in extraordinary ways. The guidance, signed by Harvard interim president Alan Garber and fifteen top deans and approved by Harvard’s governing board, bans all protests on much of Harvard’s campus.

It declares, “Unless a particular School makes an explicit exception, demonstrations and protests are ordinarily not permitted in classrooms and other spaces of instruction; libraries or other spaces designated for study, quiet reflection, and small group discussion; dormitories, residence halls, or dining halls where students live and take their meals; offices where the work of the University is carried out; or other places in which demonstrations and protests would interfere with the normal activities of the University.”

By announcing massive zones of campus where protests are entirely forbidden, Harvard is suppressing free speech, not protecting it. Colleges should never ban protests themselves; they can restrict and punish certain kinds of protests for their disruption, but they cannot impose total prohibitions on protest without violating fundamental norms of free expression.

The fact that Harvard’s top officials fail to make this fundamental distinction suggests that their goal is not to prevent disruption but to silence protest. Harvard is under tremendous pressure from wealthy donors and powerful politicians to censor criticism of Israel. But that’s no excuse for violating the rights of everyone in its community.

One of the most fundamental free speech cases in Supreme Court history is the 1969 Tinker v. Des Moines case, which upheld the right of children to protest the Vietnam War in their classrooms (by wearing a black armband) as long as it was not disruptive. The court ruled that protests can only be restricted when they “materially and substantially interfere” with the operations of an educational institution. 

The Tinker ruling stands for the doctrine that even in a children’s classroom, students are allowed to protest if the protest is not disruptive. It’s hard to reconcile that fundamental doctrine of free speech with a total ban on adults protesting in classrooms, libraries, dorms, dining halls, offices, or anywhere else the administration dislikes them. Under a strict reading of this new guidance, students cannot engage in any protests inside Harvard buildings, not even inside their own dorm rooms.

It should be noted that although the ban on protests seems aimed at students, it is a universal rule that also applies to all faculty and staff who want to protest, and endangers academic freedom.

When discussing protests against campus speakers, the new guidance adopts a completely different and much better approach to protests: “community members may not protest a speech or event in a manner that interferes with the right of the speaker(s) to be heard or of the audience to hear them.” It is not protest itself, but the manner of it–in violation of the rights of others–that can be restricted. Unfortunately, this section only applies to speakers and doesn’t correct the absolutist restrictions on protest imposed earlier in the guidance

The guidance is also inadequate because it fails to address the problem of disruption from outdoor protests. While all protests inside residence halls are banned in this declaration, the guidance never indicates that anything is wrong with a loud protest held at 2:00 a.m. directly outside a residence hall that wakes up the entire building. By banning indoor protests rather than limiting disruptions, the guidance suppresses free expression while failing to stop violations of the rights of others.

As a private university, Harvard is not legally obligated to protect free speech on campus (or to protect academic freedom for its faculty). But Harvard is morally obligated to strive to be among the best universities at free speech if it wants to be one of the best universities in the world. And this new policy reflects Harvard’s devastating failure to meet minimal standards for protecting free expression.

Perhaps worst of all, this policy teaches students that protests are inherently disruptive. Harvard ought to offer advice to students on how they can engage in protests and express their views without violating the rights of others, and why nondisruptive protests can actually be much more effective at changing hearts and minds than attempts to annoy people into agreeing with you. By banning nondisruptive protests, Harvard is encouraging protests to be more extreme. If students are told they will be breaking the rules anyway by protesting, they will be more inclined to be as disruptive as possible and get the most attention for their actions.

The Boston Globe described this ban on protests with the headline, “Harvard tries to restore calm,” declaring that Harvard “announced steps aimed at bringing peace to a campus that has been roiled for months by protests.” The goal of a university is to get at truth by allowing the free exchange of ideas, not to achieve peace and calm by suppressing protests. The repression of protest by administrative fiat is a tactic that will only generate more conflict and confusion about the rules. 

Mistakes like this policy might have been avoided if Harvard believed in the tenets of shared governance. Instead of simply announcing a new “guidance” approved by the administration and the governing board, Harvard could have followed better procedures for campus policies by engaging faculty and student committees to study the issue, offer public recommendations for reforms, and then develop a sound guidance based on that feedback. Instead, they decided to announce a ridiculous ban on all protests in many areas of campus. 

February 24, 2024, is the 55th anniversary of the Supreme Court’s ruling in Tinker, and Harvard ought to mark the occasion by renouncing its misguided new antiprotest guidance and starting the process of a revision that follows shared governance and protects the rights of everyone.

John K. Wilson is the author of eight books, including “Patriotic Correctness: Academic Freedom and Its Enemies” and the forthcoming book, “The Attack on Academia.”