Texas cannot make up its mind about free speech.
In 2019, it enacted legislation seeking to promote a robust and uninhibited exchange of ideas in its public colleges and universities. Aptly called the Protected Expression on Campus Act, that law required higher education institutions to develop and promulgate policies protecting freedom of speech and assembly and to make those policies public. It prohibited them from preventing students or faculty from inviting speakers to campus because of the controversy their visits might cause, and mandated that students who interfere with the free speech activities of others be subject to university discipline. And it took the additional step of saying that outdoor spaces on campus would be “traditional public forums.”
Such a forum is generally understood to be a public area open to anyone to exercise rights guaranteed by the First Amendment. Conservatives enthusiastically supported the 2019 law, believing that it would ensure their viewpoints would be aired on campuses awash in political correctness.
But the Oct. 7, 2023 terrorist attack on Israel and its aftermath changed everything. And on June 25, the Lone Star State changed course when Gov. Greg Abbott (R) signed into law “The Campus Protection Act.”
The Austin American-Statesman says that the law will “tighten free speech rules on college campuses after pro-Palestinian protests erupted last year at universities across the country, including at several Texas campuses, where students called for an end to the Israel-Hamas war.” It severely restricts the rights of students and staff in its state universities to engage in peaceful protests of the kind long recognized by the Supreme Court as legitimate expressive activities. The law sets up a new front in the free speech wars, and should be struck down when it is challenged in the courts.
Among other things, it withdraws the public forum designation that made space for pro-Palestinian and anti-Israeli voices. The Campus Protection Act also prohibits protests after 10 p.m. and before 8 a.m., prohibits the use of microphones or drums at any hour, and bans protests of any kind during the last two weeks of every semester. And it bans camping, using tents, or wearing any disguise designed to conceal someone’s identity.
On their face, the kind of restrictions contained in the Campus Protection Act seem designed only to regulate the time, place and manner of speech — regulations allowed under the Supreme Court’s understanding of the First Amendment. Such restrictions are already common in Texas; state law prohibits "picketing within 1,000 feet of a facility or cemetery being used for a funeral service," starting “3 hours prior to the service and ending 3 hours after the service.” Texas also limits protests at "critical infrastructure facilities," including pipelines, “transporting oil or gas, or the products or constituents of oil or gas."
That is free speech, Texas style.
But even in Texas, time, place and manner restrictions must be “reasonable.” The United States Supreme Court has made it clear that the government has the burden of showing that such restrictions are “content-neutral, serve a significant government interest, are narrowly tailored to that interest, and leave open ample alternative channels for communication.”
Whether a law that targets the time, place and manner of speech is content-neutral is not simply a matter of what it says. Courts are also required to examine the context and circumstances surrounding the law’s enactment to see if the restrictions are simply a pretext for preventing or punishing speech of which the authorities disapprove.
Here, it seems evident that the Campus Protection Act is really targeting pro-Palestinian or anti-Israeli protests. One of the act’s chief sponsors made that clear when he said, “(T)he world watched Columbia, Harvard, and other campuses across the country taken hostage by pro-terrorist mobs last year.” In addition, Abbott has denounced pro-Palestinian demonstrations on campuses as “hate-filled” and “antisemitic.”
In fact, the law removes a requirement previously enacted by the Texas legislature that the restrictions the Campus Protection Act imposes must be "content-neutral."
If that were not enough to signal the law’s serious constitutional defects, earlier this month, the Houston Chronicle published an opinion piece calling it "unfathomably broad." The law does not distinguish large protests from people wearing T-shirts with slogans opposing the Trump administration’s immigration activities or from three people standing silently holding signs with the same message.
Texas needs to make up its mind about free speech. The First Amendment is not a weathervane. It does not allow the government to hold speech hostage to changes in the prevailing political climate.
The 2019 law was right to recognize that speech is often annoying, upsetting and disruptive. If it wasn’t, it wouldn’t need protection. That is why today, the courts shouldn’t allow Texas to restrict campus protests that it finds offensive or politically incorrect.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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