I read Alex Gourevitch’s “The Right to Be Hostile” with great interest. While I largely agree with his sentiments, a few legal clarifications might be helpful. He is absolutely correct that “the hostile environment concept . . . was never meant to (and shouldn’t) extend to protest.” The concept derives from employment discrimination law; it is a standard for a discriminatory employment situation. For those not in an employment relationship, the creation of an allegedly “hostile environment” is and should be (mostly) irrelevant, when we are not talking about specific acts directed at specific individuals.

Gourevitch’s description of First Amendment law in the university context is also not quite accurate. In particular, the claim that First Amendment protections apply “only to public universities,” with “public fora” such as a “yard, field, or plaza,” is not quite correct. In some states (such as California) and in some circumstances, the First Amendment restricts the right even of private landowners to ban or regulate speech. The famous U.S. Supreme Court case, PruneYard Shopping Center v. Robins (1980), held that a shopping center owner did not have the right to prohibit students from soliciting signatures on a political petition on shopping center grounds. It was not a defense to claim that they were “trespassers” or expressed a view with which the private landowner disagreed. As it happens, the petition at issue in PruneYard was an objection to UN Resolution 3379, which “determine[d] that Zionism is a form of racism and racial discrimination.”

Which brings me to my final point. There is a word entirely absent from Gourevitch’s article, which is quite conspicuous by its absence: “Zionism.” The crackdown and punishments Gourevitch describes were not simply directed at “any actions that caused Jewish or Israeli students to feel uncomfortable.” Because, in fact, many of the “offending” protesters were Jewish themselves. A more accurate description is that there has been an ongoing attempt to chill speech that would make Jewish or Israeli Zionist (or pro-Israel) students uncomfortable.

Gourevitch does note, later in the article, that “there have been no similar crackdowns on pro-Israel protesters.” (It is not clear whether Christian evangelical supporters of Israel have been made to feel uncomfortable, anywhere.) What the plaintiffs in PruneYard understood, and what the larger American Jewish community has long understood, is that the suppression of speech will never, in the long run, be “good for the Jews.” For decades, Jewish organizations were aligned with efforts to protect the most robust speech rights, including rights of protest, and not only because Jews were often among the protesters. As in the even more famous “Nazis in Skokie” case, National Socialist Party of America v. Village of Skokie (1977), our best First Amendment jurisprudence has echoed precisely what Gourevitch says: “whatever right protesters claim for themselves is a right they are also claiming for their enemies.”