Doors closed at UvA because of possible political demonstration? Unwise!

Last Thursday I was in my office dealing with cases of plagiarism – not the most rewarding part of academic work. Through my closed windows on the eighth floor, chants from the pro-Palestine demonstration taking place on the Nieuwe Achtergracht bridge reached me: “From the river to the sea…”. This awakened a different sense of discomfort than sending emails to the board of examinations.

As an ageing millennial, I’d rather people protesting did not use language that lends itself to antisemitic interpretations. As a citizen, I believe many versions of anti-Zionism represent legitimate, if controversial, political positions and that conflating them all with racism is a rather ironic form of silencing – while at the same time I understand why many Jews worldwide attach great importance to the existence of a distinctively Jewish state. But this is not what matters here.

A concerned email

As an academic lawyer, I am most concerned about the email I had received an hour earlier from my employer: some buildings on the REC, including the one I work in, had been closed due to the demonstration – essentially to prevent the protesters from entering the main halls. Why would that be necessary?

First of all, the action seems fully in line with, and even more restrained than, general UvA policy: no more than a few days ago, our rector declared in the course of an interview in Het Parool (in Dutch): “where you can smoke, you can also carry out a political protest, that is, outside university grounds” (“waar je weer mag roken, mag je ook politiek demonstreren: buiten de terreinen van de universiteit”). At REC, that means roughly until the entrance of Lebkov café, on either side of the canal (West side), and towards the Valckenierstraat, I suppose until somewhere past the entrance of J/K (East side).

Yet, the protesters were on the bridge – well within the campus border. Is the suggested equivalence between smoking and protest policies plausible? People, including non UvA-affiliated passers-by, are of course allowed to walk on the canal to reach Crea, take a shortcut to the little park to the west of the campus, reach the Sarphatistraat and so on. While the UvA may have a plausible claim to prohibiting smoking on campus terrain, smoking is – unlike demonstrating peacefully – not a fundamental right.

Semi-public spaces

Can the UvA prevent the exercise of a fundamental right on its terrains and within its buildings? Under Dutch law, demonstrating is always allowed, subject to notification, in public places – limitations should be imposed only for grave concerns. The right is included in the Dutch constitution and (if questionably, in Dutch) implemented in public law. But what about private spaces – and is the UvA such a space? Assuming it is a private space, the European Court of Human Rights’ jurisprudence recognises limited duties for states to make demonstrations possible on privately owned grounds. But the Court does not deal with horizontal direct effect of fundamental rights: what is expected of land owners?

For instance, the Venice committee observes that German courts have held that it matters whether places are a “one-purpose destination” or places where people can expect to be able to go “for a leisurely stroll” – which would suggest normally walkable university grounds along the canal would count as places where demonstrations can also take place.

Buildings could be a different case: maybe not by chance the Law dean’s message on Thursday was more carefully worded than the rector’s interview: “Demonstrating at UvA locations is allowed under conditions. However, the (social) safety of students and staff in our buildings should never be compromised. To ensure safety, we have house rules and a number of conditions must be met. The announced demonstration did not: it was a political demonstration and the demonstration had not been requested from the UvA. Moreover, the demonstrators called for participation with face coverings, something that is not legally allowed in educational buildings.”

Social safety is a recurring theme: also the rector explained in his interview that, in contrast to hearing and learning uncomfortable facts and theories in class, where we must assume such conversations, belong in this view, “demonstrations in halls that are accessible to all also reach other students and employees”. Social safety has become a very heated topic which I don’t want to discuss here – the question is however whether it is a wise idea for the UvA to pre-emptively preclude demonstrations on the basis of the fact that they may include contents that the university disapproves of in terms of social safety.