Did Columbia University Violate the First Amendment?

It's commonly argued that private groups cannot break the First Amendment, but there's an exception: If there's "entanglement" between the private entity and the government. It looks like there was.

Students at Columbia doing a traditional dabke folk dance.

Defending Rights & Dissent in their recent letter to Columbia President Minouche Shafik (which has lots of good information) stated: “Although Columbia University is a private institution not governed by the First Amendment, the role of state actors — in this case members of Congress — in instigating the action would raise serious First Amendment concerns.”

This might seem odd to people. Many people think that private groups can disregard the First Amendment, which only limits government action. However, Defending Rights & Dissent is perfectly correct in noting this case may be different.

The group adds that “Even if the First Amendment could not be found to apply, it would still be a serious breach of norms of academic freedom.”

But, if you examine, as Defending Rights & Dissent indicates, the interaction between Shafik and members of Congress, it could be worse.

Just before she called the police on the student protesters, it certainly appears that Shafik got her marching orders from the government at the Congressional hearings.

Former head of the ACLU Nadine Strossen told me in an interview in 2021 while discussing Big Tech platforms and the First Amendment: "even private sector actors are directly bound by constitutional norms, including the First Amendment free speech guarantee, if you can show that there is in the legal term to describe this is called entanglement, sufficient entanglement, between the government officials and the nominally private sector actors, that if they are essentially conspiring with the government doing the government's bidding, the government can't do an end run around his own constitutional obligations that way."

Thus, the argument could be made, Shafik was effectively coerced by Congress and allowed Columbia to be entangled with the US government, doing its bidding by calling the police on the students.

And it should be noted that Shafik’s background is not what one might expect from a university president, see short backgrounder from Max Blumenthal, who notes she is on the board of the Bill and Melinda Gates Foundation and “owes her entire career to the trans-Atlantic oligarchy, and has no space in which to defy it.” Also, Yale economics professor Ahmed Mushfiq Mobarak notes that she only has one “well-cited publication in her life” and accuses her of effectively stealing it from a junior author. Going to the protests at George Washington University last night, one thing that struck me was how many of the students were wearing masks or using a keffiyeh to cover their faces. Some have claimed it is a Covid thing, but no, it’s clearly largely so they don’t get exposed and get doxxed by pro-Israeli groups on campus, and potentially have their careers ruined.

Added:

Daniel Lazare gives a good breakdown of the proximate causes of the entanglement or coercion that may show a violation of the First Amendment:

Columbia president Nemat “Minouche” Shafik was testifying at a congressional hearing in Washington. The former Bank of England deputy governor twisted nervously in her seat, as a succession of rightwing Republicans denounced a volcano of anti-Semitism that is supposedly erupting on college campuses and demanded to know what she was going to do about it. A cross-examination by Lisa McClain, an arch-conservative from the rural fringes of northern Detroit, was typical:

“What is your definition of anti-Semitism?” McClain began.

“For me, personally, any discrimination against people for their Jewish faith is anti-Semitism,” Shafik replied.

Pointing out that Shafik had established a university task force to investigate anti-Semitism, McClain asked if members agreed.

“I-I-I’m pretty sure they would share that same definition,” she said, looking more and more uneasy. The Michigan Republican then zeroed in for the kill:

McClain: Are mobs shouting, “From the river to the sea, Palestine will be free” or “Long live the intifada?” Are those anti-Semitic comments?

Shafik: When I hear those terms, I find them very upsetting ...

McClain: That’s a great answer to a question I didn’t ask, so let me repeat ... Are those anti-Semitic statements, yes or no? It’s not how you feel, it’s ...

Shafik: I hear them as such, some people don’t ...

McClain: Was that yes? Was that yes?

Shafik: We have a sent a clear message to our community ...

McClain: I’m not asking about the message. [Does] that fall under definition of anti-Semitic behaviour, yes or no? Why is it so tough?

Shafik: Because it’s a - it’s a - it’s a difficult issue, because some people define it as anti-Semitic, other people do not.

After more hemming and hawing, Shafik finally gave in. Such slogans, she conceded, were indeed beyond the pale. “So yes,” McClain said, “you do agree that those are anti-Semitic behaviour and there should be some consequences to that anti-Semitic behaviour. We’re in agreement, yes? “Yes,” Shafik replied.

Shafik had gotten her marching orders. Returning to New York, she called the police less than 24 hours later and requested them to clear the field. More than 100 students were arrested on trespassing charges and hit with academic suspensions. Joe Biden, among others, issued a statement in support:

The ancient story of persecution against Jews in the Haggadah [Passover] also reminds us that we must speak out against the alarming surge of anti-Semitism - in our schools, communities and online. Silence is complicity. Even in recent days, we’ve seen harassment and calls for violence against Jews. This blatant anti-Semitism is reprehensible and dangerous - and it has absolutely no place on college campuses, or anywhere in our country.

Further, most recently, you had House Speaker Mike Johnson go to Columbia to make further demands. He also made baseless claims about Hamas slaughtering babies on Oct. 7, something several outlets have debunked in detail and I called out back in October:

Follow-up: