Nick Leiber
On May 12, CUNY Law School graduate Fatima Mohammed gave a roughly 13-minute commencement speech to her graduating class as a student-selected speaker at CUNY Law’s graduation ceremony. In it, she shared reflections, offered gratitude, and criticized Israel, the New York Police Department, and the legal system itself. Despite her words clearly meeting First Amendment speech protections, a bullying campaign led to a torrent of negative coverage in right-wing media characterizing her words as antisemitic, calls for depriving CUNY Law of public funding, and public concerns for her safety.
By First Amendment speech protections, I’m talking about the right to articulate opinions–including unpopular ones–without censorship, interference, or retaliation from the government. The Supreme Court has held that the First Amendment protects a wide variety of speech and conduct, including burning a flag, peacefully protesting, and making statements many find abhorrent. In its 1989 decision Texas v. Johnson, the Court famously held: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Earlier Supreme Court cases made clear that the First Amendment protects students expressing themselves at their public high schools and state colleges and universities. In 1969, the Court in Tinker v. Des Moines Independent Community School District found that school officials could not censor student speech unless it disrupted the educational process. Three years later, in Healy v. James, the Court affirmed First Amendment protections on public college and university campuses: “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
As a public law school, CUNY Law is a public institution, and there are arguably few CUNY spaces that provide more of a public forum than a school’s commencement ceremony.
In June, Fatima gave her first interview since the bullying campaign began; she was unwavering in her declaration that she would make the same speech again. I admire Fatima’s bravery, and I, along with many students, alumni, faculty, and others, including the National Lawyers Guild, PEN America, and the Center for Constitutional Rights, support her. As a current CUNY Law student, I’m disappointed with CUNY’s Board of Trustees and Chancellor for enabling the personal attacks against Fatima. Their May 30 statement only abetted the campaign against her by erroneously characterizing her remarks as “hate speech,” asserting they “fall into the category of hate speech as they were a public expression of hate toward people and communities based on their religion, race or political affiliation.”
One problem with the Board calling Fatima’s commencement speech hate speech is that it was not hate speech, as hundreds of professors inside and outside CUNY Law and the CUNY system make clear in their letter to the Chancellor and Board. The professors urged CUNY to withdraw its statement and issue an apology to Fatima and the entire CUNY Law Class of 2023. They rebutted the Board’s assertion, explaining that:
No reasonable interpretation of the student speaker’s remarks would suggest it was “hate speech,” given that none of the student’s comments attacked any persons or protected classes,[1] but at most commented on nations and state institutions that are incontrovertibly causing harm to people domestically and internationally. Moreover, the May 30th Statement’s suggestion that hate speech includes “political affiliation” as a characteristic similar to race or religion is wildly inconsistent with long-standing and legal definitions of the concept of hate speech. Indeed, the implication that an elected-student speaker at an institution devoted to social justice and human rights was applauded by her peers, faculty, and attendees for engaging in “hate speech” is an affront to both the student speaker and our entire community. This casual and inappropriate characterization also undermines the identification of actual hate speech and state-sponsored bigotry that is sadly on the rise in the United States and often targets many of us in the broader CUNY community. Needless to say, the student speaker’s remarks were heartland First Amendment protected speech.
Another problem with calling Fatima’s words “hate speech” is that the term lacks a legal definition under U.S. law and is protected by the First Amendment, according to this explainer about free speech on campus. While there are very narrow exceptions that allow schools to impose limitations on student speech, such as incitement of illegal activity, Fatima’s words do not fit within these exceptions.
On June 12, CUNY’s Professional Staff Congress–a union representing thousands of CUNY faculty and staff across CUNY campuses–echoed yet another problem with the Board’s statement about Fatima’s speech: “Mischaracterizing expression protected by the First Amendment as hate speech has a chilling effect in the context of public higher education, whose bedrock must be free speech and academic freedom.”
Meanwhile, CUNY Law’s Jewish Law Students Association, along with more than a dozen other student groups, offered a statement of support for Fatima that noted the history of “harassment campaigns against Palestinian and Muslim law students at the CUNY School of Law.”
For those unfamiliar with the CUNY system, it may be helpful to know that CUNY is comprised of 25 public institutions across New York City that includes the law school. An entity known colloquially as CUNY Central, in addition to the Board of Trustees and Chancellor, oversee the system. The Board has taken controversial actions before when a speaker has dared to criticize Israel, including shelving an honorary degree for Pulitzer Prize-winning playwright Tony Kushner.
Last month, the New York City Bar Association weighed in, condemning the discriminatory harassment and threats of bodily harm directed towards Fatima and urging CUNY leadership to “reconsider its position and affirm its commitment to the principles of free speech and expression.” The City Bar’s report expressed concern that the CUNY Trustees’ statement “risks deterring law students and recent law graduates from practicing and learning how to have difficult conversations on topics about which there is disagreement.” It also urged CUNY to consider the ramifications of a powerful institution criticizing a “young immigrant woman of color at the outset of her career.”
The bottom line: The message that CUNY’s Board of Trustees is sending to CUNY Law students and professors (and many others) enables bullies and devalues both the importance of supporting free speech and combating hate.
The recording of the full commencement is available on on YouTube. Fatima’s speech starts around 1:15:00.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.