Free Speech, Antisemitism, Pretext, and Political Overreach at UVA

The University of Virginia’s corporate governing body, its Board of Visitors, continues negotiating with lawyers from the U.S. Department of Justice. Based on experience at Columbia, Harvard, and other universities, informed speculation had suggested that DOJ was charging UVA with not properly banning, punishing, or otherwise regulating hate speech, and particularly antisemitic expression, among students and faculty. There was concern that DOJ might seek to have UVA constrain aspects of the faculty’s academic teaching relating to antisemitism.

On September 10, 2025, DOJ informed UVA that it had closed an inquiry into a single incident of “hate-based antisemitic misconduct.” DOJ explained its decision was based on UVA’s cooperation, and on information UVA furnished regarding the incident and “appropriate remedial action.”

But observers at UVA remained wary. On Wednesday, their caution proved justified. As widely reported in the press, the administration presented UVA and eight other universities with a “Compact for Academic Excellence.” As reported by AP, the administration hopes these universities will “commit to President Donald Trump’s political priorities in exchange for more favorable access to federal money.”

The Compact, long and winding and internally contradictory at important points dealing with teaching and political expression, would obligate signatories to relinquish important aspects of academic freedom and free speech. The administration’s veneer of protecting viewpoint diversity is thin. The Compact’s real, and very apparent, purpose is achieving ideological control of university teaching. It would channel exchange of ideas on select campuses to comport with government’s political priorities. This extortion would operate using burdensome reporting regulations and cutoffs of federal funds (and even philanthropy) for noncompliance.

The Compact would allow executive branch monitors wide discretion to ascertain whether signatory universities were managing viewpoint discrimination sufficiently in favor of the government’s political preferences. Government monitors would use putatively empirical standards for this work; but those standards are at their core subjective. They are easy to abuse and manipulate for political ends. Because they are unconstitutionally vague, they would be ripe for successful legal challenge out of the gate.

Seen from this perspective, what the Compact seeks is absolute abrogation of what universities in America have been and are about – teaching, research, and the search for truth independent from political thought control. It would open the way to ideological and political preferences imposed on university teaching and discourse, and actually on all university life. It is an experimental leading edge, a demonstration of naked political overreach precisely because it is so unabashedly open. Starting with nine leading universities’ voluntary submission emphasizes the power of the contrivance.

The cost would be staggering. The American system of higher education is one of our country’s great achievements. The Compact’s overreach would impair this enduring American strength. By imposing unconstitutional conditions it would begin a process to stifle greatness, all to gain political advantage.

If the federal government sought to impose such regulations directly rather than through universities’ compelled acquiescence, those efforts would obviously be unconstitutional under Supreme Court precedent. They would be defeated easily, though expensively, through litigation.

Why such regulation is fundamentally ill-conceived, why and how it would violate the First Amendment, and why the BOV is obligated to reject any such DOJ demands including the Compact, are subjects of this analysis. The starting point predates the Compact.

For context, a Washington Post article, “Inside the powerful task force spearheading Trump’s assault on colleges, DEI” ( https://wapo.st/413jE3p , published July 18, 2025), reports how the Trump administration is using antisemitism investigations as a pretext to pursue a conservative doctrinal agenda against universities. Highlights (emphases added):

[M]any of the task force’s unprecedented demands and punishments have nothing to do with antisemitism. Instead, they seek hiring and programming changes to strip long-standing conservative targets including DEI and a liberal worldview from higher education.

The administration is using antisemitism investigations as a pretext to pursue an unrelated conservative agenda . . . .

The Trump Administration’s attack on university teaching is a reaction to widespread, long-term failure of its brand of conservative political and social ideology to find acceptance in much of the popular press, both print and electronic media generally, and in the flow of ideas in a significant majority of universities and colleges in America, taken as a whole and with some notable exceptions. This is “the marketplace of ideas,” a phrase introduced by Justice Oliver Wendell Holmes, an imperfect metaphor, and yet one enshrined in the literature and court decisions of the First Amendment.

Frustrated by conservative – what truly is “conservative” is debatable – long-term failure to attract doctrinal adherents among the majority of America’s information media platforms, the Administration seeks to warp the flow of ideas in higher education, a flow that traditionally has been unburdened by government specification or editorial review. It seeks to accomplish this goal by suppressing or otherwise channeling speech to which it objects in higher education forums, while favoring, indeed promoting, expression of its own political, cultural, and historical interpretations and preferences. It is a campaign of political distortion backed by government power.

The Administration’s weapon of choice is a pretextual assault to stamp out antisemitism on campuses. How to counter this pretext?

First, we identify protected speech that government, under the Constitution, may not restrain, forbid, or punish. That contrasts to violent or harassing action (including physical violence or “true threats,” “fighting words,” or patterns of harassment directed to creating fear of violence) that government can and is obliged legally to regulate under Supreme Court precedent.

A fundamental Constitutional principle is that government may not engage in viewpoint discrimination to attempt to control expression, or as a pretext to suppress opinion or inquiry. This is bedrock First Amendment. (The exception is that government controls its own official speech explaining governmental rules and policies.)

This principle applies directly to state universities. The Commonwealth of Virginia need not have state universities. If it does, as Virginia obviously has chosen to do, it may not, as a condition of having state universities, censor the free expression of faculty, students, and other non-government speakers in university communities. It may not impinge on or regulate faculties’ or students’ academic freedom, the free flow and back-and-forth of ideas that is at the core of any university’s existence, and that is protected under the First Amendment.

Protected speech includes hate speech (a colloquial and not a legal category). The First Amendment protects hate-filled expression, so long as it is not intended to incite imminent lawless conduct and is unlikely to incite such conduct. This test is prescribed by the Supreme Court in Brandenburg v. Ohio, decided in 1969.

Protected hate speech includes expression that truly upsets people, and makes them angry, uncomfortable, disparaged, despised, reviled, hated, or shunned. Enduring such speech – speech we hate and would like to stop or other otherwise have government regulate and punish – is repeatedly recognized by the Supreme Court as a cost of maintaining the Constitutional system of free expression. Why? Because, were government allowed to restrain or punish some people’s speech, the Court recognizes that there is no principled, reliable way to stop government’s controlling speech without boundaries. This is a lesson of history.

A current example: speech and related peaceful protests criticizing Israel for serial war crimes in Gaza. Even if that criticism is wrapped in speech denouncing Jews generally and evidencing hate for Jews collectively, it is protected unless it crosses Brandenburg’s line of imminent incitement.

Trump’s attempts directed at universities to curtail protected expressions of hatred against Jews (or Muslims or any religious, ethnic, cultural, or political group) is camouflage for efforts to suppress criticisms the Administration disfavors. It is the leading edge of blatant widespread government desire to curtail academic freedom and speech on campuses, even though that expression enjoys core First Amendment protection; and it is patently unconstitutional.

Summary: As long as it is expression and not actionable incitement, antisemitic or Islamophobic speech is protected from government regulation or punishment.

Second, all must recognize the legal obligation of UVA’s Board of Visitors, as agents of the state, to observe viewpoint neutrality, and thus preserve the freedom of all in UVA’s community to express opinions freely without government’s punishment or prior restraint. That obligation persists, and is enforceable, even when some peoples’ or groups’ opinions oppose social or policy preferences of federal or state government, or of the BOV itself.

As we learned in the previous section, the BOV cannot disfavor anyone’s speech unless and until particular speech is intended to incite, and is likely to incite, imminent violence, disruption, obstruction, harassment, true threats, or other unlawful conduct under Brandenburg. It can comment on speech it abhors and urge civility; but it cannot restrain or punish pure expression.

Every university is obligated to assure physical safety for all in its community – to police and punish violence diligently, consistently, and evenhandedly. That cannot, however, morph into punishing speech evincing anger or hate. There a university is obliged assiduously to protect speech even when it is offensive and upsetting to some or many. The two obligations go hand-in-hand. They require acknowledging, honoring, and teaching the distinction in our jurisprudence between regulating action so as to preserve physical safety and, conversely, protecting people’s right to expression – even expression that causes offense, anger, and mental anguish.

The BOV’s time, place, and manner policies implement these First Amendment rules. UVA has set aside and publicly specified locations where individuals or groups may reserve time to express their views. The corollary is that no speakers are allowed to disrupt or obstruct activities (for example, by erecting tents on University Grounds). UVA enforces these rules consistently, without favoring or disfavoring any individual or group of speakers. That is why, for example, UVA called in State Police to remove tents erected on Grounds to protest Israel’s conduct in Gaza. Erecting the tents crossed over the Brandenburg line from expression into unlawful action because it contravened time, place, and manner policies.

UVA’s consistent, neutral enforcement of its time, place, and manner policies, along with Judiciary Committee and other procedures applicable to student conduct, undercut charges that UVA had or has exhibited a pattern of indifference to antisemitic acts. Assertions that UVA has been unable to prevent isolated instances of harassment directed against Jewish students or others does not change this picture. UVA’s policy is to investigate and, when appropriate, police such acts when complaints are lodged.

Third, much has been made recently of the fact that the BOV and UVA’s University Counsel are obligated as fiduciaries to promote the interests of the Commonwealth, not just interests of the University. This is indeed current law in Virginia. However, the Commonwealth as a whole must adhere to the First Amendment, protect free speech, interdict and punish unlawful action, and be guided by Brandenburg’s imminent incitement test. Thus, when protecting academic freedom and free speech at UVA, whether the BOV and UVA’s counsel are implementing UVA policy or Virginia law more generally makes no difference whatever! The First Amendment governs it all. The same is true at all Virginia’s other state universities.

The Commonwealth need not, as a matter of natural law, have state universities. But if it does, as it has long elected to do, it cannot condition the functioning of those universities on state-sponsored monitoring or viewpoint discrimination. It cannot demand that state universities suppress expression the government disfavors or claims is discriminatory. Free speech - expression - can be discriminatory. The First Amendment overpowers any attempts by government to constrain speech through anti-discrimination statutes or policies.

Thus First Amendment precedent also forbids governments’ offering, imposing, and enforcing contractual reporting and monitoring to achieve what government deems is sufficient viewpoint balance in teaching and faculty (or student) speech. This still is viewpoint discrimination. It is government overreach. The thin veil of an extorted contact?? – the Compact – does not hide the underlying reality.

This rule applies with deliberate force to speech some may consider antisemitic or Islamophobic. Those speakers must be protected. That speech must be allowed. The state – particularly the BOV at UVA – must sedulously protect such expression, even though it abhors the content. For the same Constitutional reason, the BOV must champion and preserve the academic freedoms of UVA’s faculty.

This legal obligation applies throughout Virginia, not just at UVA. It is controlling for all state universities. The free flow of ideas on media platforms of all kinds must function unconstrained by government preferences or policies. Justice Holmes’s metaphorical marketplace, where ideas are in constant competition for adherents and where critics of those ideas abound, must be protected by government from government. The same rule applies to all colleges and universities throughout the United States infused with “state action” through acceptance of federal funds and other federal benefits. It is a rule emerging at the forefront of our nation’s cultural clashes.

Fourth, the BOV, as an agent of the Commonwealth, is obligated to vindicate these Constitutional imperatives in any negotiations with the U.S. Department of Justice to resolve any of the DOJ’s remaining spurious allegations against UVA. In negotiations with DOJ, the BOV and its counsel are obligated not to agree to any federal demands that would impinge on the University faculty’s academic freedom. At this moment, that means not acceding to the Compact.

This duty extends to protecting expression of viewpoints by any member of the UVA community, including students and faculty, or administration members speaking or writing in their individual capacities. The BOV therefore must resist demands, based on assertions that UVA permits antisemitic and Islamophobic speech, that would compromise First Amendment freedoms on Grounds.

Explaining the BOV’s constitutionally compelled duties here reveals a fundamental flaw in the administration’s calculus surrounding the Compact. Any university that acceded to it would immediately face successful litigation to stop the Compact’s going into effect. Why? Because faculties everywhere would have standing to bring a court challenge; and they would succeed on constitutional grounds. They could block any university’s attempt to be a signatory or otherwise to comply.

UVA is positioned to lead nationally in recognizing this reality; indeed, UVA has a claim to this leadership. It is one more reason for the BOV to reject the Compact outright.

Parenthetically, some people simply will not believe that the First Amendment applies the way Supreme Court precedent demands; they are deeply offended and angered at the scope of “free speech.” This is a fact of life in preserving the free flow of ideas. And it does not justify any retreat from Jefferson’s instruction at UVA: “for here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

Defending reason in the marketplace of ideas is ever the task. It requires fortitude, even – especially – in the face of angry people.

In summary, the BOV shares a duty with UVA’s faculty, students, administration, and alumni to defend the academy’s First Amendment freedoms aggressively. The BOV does this through policy choices, public dialog, resistance to illegal demands such as the Compact, and, if necessary, through litigation. The University of Virginia community can and will hold the BOV to this duty.

Note: For more on the First Amendment, read Freedom for the Thought that We Hate, a Biography of the First Amendment, by the late New York Times’ Pulitzer Prize-winning columnist Anthony Lewis. Published in 2007, it remains an unmatched guide for lawyers and non-lawyers alike.

Richard D. Marks

Richard D. Marks is a member of the District of Columbia Bar. He graduated from the College of Arts & Sciences at the University of Virginia in 1966 and from Yale Law School in 1969.

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