Does the First Amendment Protect Speech on Private Property?

I’ve recently heard some people (serious people, though not First Amendment experts) argue that private universities have a duty to suppress certain kinds of anti-Semitic speech—or perhaps, more broadly, anti-Israel speech—when it creates a “hostile educational environment” based on national origin. Title VI of the Civil Rights Act of 1964 bans race and national origin discrimination in federally funded programs, and courts have read that as requiring such programs (including at universities) to prevent such hostile environments. And, this particular argument goes, applying this legal requirement to anti-Semitic/anti-Israel speech doesn’t violate the First Amendment because the First Amendment doesn’t apply to private universities.

This argument, I think, is wrong, because it misunderstands the nature of the “state action” doctrine. It is true that the First Amendment generally doesn’t protect speakers against private action (by private universities, private employers, private social media platforms, and so on). But it does protect speakers against government action, and the threat of civil liability (or withdrawal of federal funds) under Title VI is government action. And this protection extends even when the speakers are on private property.

Consider a few familiar examples. Does the First Amendment protect speech in ads in the New York Times? Well, it doesn’t protect such speech from the Times’ editorial decisions; you and I have no First Amendment right to force the Times to carry our speech. But when the government imposes civil liability on such speech, that civil liability may violate the First Amendment, because it’s the government that’s imposing it. Those are, of course, the facts of New York Times Co. v. Sullivan (1964); note that the defendants there weren’t just the newspaper but also the individuals responsible for the advertisement.

Does the First Amendment protect publishers’ distribution of books through private bookstores? Well, it doesn’t protect that distribution from the bookstores’ choices of what books to carry; the publishers have no First Amendment right to force a bookstore to carry their books. But when the government threatens to punish the bookstores for such speech, that threat may violate the First Amendment, because it’s the government that is engaged in the threat. Those are the facts of Bantam Books, Inc. v. Sullivan (1963). (The presence of the two Sullivans is, to my knowledge, just a coincidence.)

Does the First Amendment protect speech on private land? Well, it doesn’t protect that speech from the landowner’s decision about what to exclude; the Klan, for instance, had no First Amendment right to force the Cana, Virginia property owner in Black v. Virginia (2003) to let them use his land. (Some state laws may require large private shopping mall owners or private university owners to provide speakers with evenhanded access to certain open spaces; but those speakers would have a state law right, not a First Amendment right.) But when the government prosecuted Barry Black, who was on the land with the owner’s permission, for burning a cross on that land, that violated the First Amendment.

To turn to recent news, does the First Amendment protect advocacy groups’ access to financial services? Well, it doesn’t protect that access from the financial services’ companies own decisions; a bank or an insurance company doesn’t violate the First Amendment by itself, as a matter of its own choice, refusing to do business with an advocacy group. But when the government allegedly threatened such companies with retaliation unless they cut off ties with the NRA, the Court unanimously held in NRA v. Vullo (2024) that these allegations of governmental pressure could be the basis for a First Amendment claim against the government. (Note that I was counsel of record for the NRA, but I expect that pretty much all First Amendment experts would characterize the case as I did.)

The same applies, of course, to private universities. Students generally have no First Amendment rights against the private university: A private university may suppress students’ speech anti-Semitic or anti-Israel or anti-American or anti-Christian or anti-police views (or the pro- versions of those views) without violating the First Amendment. But when the government allows lawsuits against private universities based on their toleration of such speech, or threatens to withdraw federal funds from them based on their toleration of such speech, that government action is subject to the First Amendment.

To be sure, one could argue that the government action is nonetheless permissible, whether on the theory that there should be a “harassment” exception to the First Amendment, or that banning certain public advocacy at universities is narrowly tailored to a compelling government interest in preventing discrimination, or on some other such grounds. (I generally disagree with these arguments, and think there’s no “hate speech” exception or “harassment” exception to the First Amendment, but I appreciate that they have been and will be made.)

But all those arguments require that this sort of Title VI hostile educational environment theory be judged under the standards of the First Amendment. There is no plausible argument, I think, that this sort of Title VI theory for governmentally imposed liability and government pressure on universities to restrict speech is immune from First Amendment scrutiny at private universities. That speech may be restrained on private property by the private property owners doesn’t mean that it can be restrained on the same property by the government.

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