Four years ago, as Texas Republicans worried that conservative voices were being silenced at universities, Gov. Greg Abbott signed a bill that enshrined new free speech protections on campuses.
“Some colleges are banning free speech on college campuses. Well, no more because I'm about to sign a law that protects free speech on college campuses in Texas,” Abbott said in 2019.
And six months ago, during a celebration of Free Speech Week, University of Texas at Austin administrators touted the school’s expansive protections for free speech on campus — including speech that was anti-war or considered hate speech.
[Dozens more arrested at UT-Austin as police use pepper spray, flash bangs to break up protests]
“Hate speech is not a category of speech the government can restrict,” Amanda Cochran-McCall, the university’s vice president for legal affairs, said at a school-affiliated Free Speech Week in October. “Imagine if the government at the whim of a political party could just decide at any time what constitutes hate speech, and then just start arresting people for engaging in it.”
But since last week, Abbott has deployed the Department of Public Safety to help crack down on separate protests at the University of Texas at Austin that he vociferously disagreed with. Campus leaders have defended their orders to students to disperse or face criminal trespassing charges.
As state troopers pushed students to the ground with black batons, Abbott cheered the arrests.
“Students joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled,” he said Wednesday on social media platform X.
In Texas and across the country, pro-Palestinian demonstrations in response to the Israel-Hamas war have put state and university leaders’ prior free speech commitments to the test. UT-Austin’s heavy-handed response to the protests — and the state GOP leaders’ support of the arrests — are a stark contrast to their vigorous celebration and defense of protected speech in previous years.
“The big irony here is that the political right has been for years and years and years criticizing campuses for not enabling enough free speech,” said Kevin McClure, a professor of higher education at the University of North Carolina Wilmington. “And now they are vociferously arguing in favor of repressing students’ free speech rights.”
[Here’s what the law says about protesting on Texas college campuses]
UT-Austin officials have said they had reason to believe that protest organizers planned to take over school spaces, like pro-Palestinian demonstrators have done at other campuses across the country. But free speech advocates wonder whether those fears were enough to crack down on protesters, raising questions about when speech is protected in Texas universities — and who gets to enjoy those protections.
“What we're seeing here is this hypocrisy of big double standards saying we love free speech, not this speech,” said Alex Morey, the director of campus rights advocacy at the Foundation for Individual Rights and Expression.
Rules and protections
Tensions at the UT-Austin campus come five years after Texas Republicans banded together around a new law to boost free speech protections at Texas universities.
The law established all common outdoor areas at public universities as traditional public forums, allowing anyone — not just students — to exercise free speech there. It also prevented universities from considering “any anticipated controversy related to the event” when approving guest speakers on campus.
“Students might be surprised to know that free speech also includes other things, though, things like the right not to speak or the right to wear an item in protest of war or to use strong — even offensive words and phrases — to convey political messages,” Cochran-McCall said at last year’s Free Speech Week.
On the morning after last week’s campus arrests, UT-Austin staff taped “NOTICE” flyers in front of the school’s tower with a notably different tone. Instead of highlighting what was permitted, the flyers detailed the university’s litany of limitations for protests: no masks, no disguises, no encampments, no loud sounds that interfere with learning and no blocking entrances.
Texas universities have the right to create “reasonable time, place and manner” restrictions on free speech activities. When those rules are violated, universities can discipline students, said Steven McGuire, who specializes in campus freedoms at the American Council of Trustees and Alumni.
Free speech also loses First Amendment protections when it amounts to discriminatory harassment or true threats that incite imminent violence or destruction of public property.
Last week’s protest showed no signs of violence before police got involved. Authorities interrupted the students’ march within an hour, forming a barricade at the front of the crowd with their bikes. The officers used loudspeakers to warn students to disperse or face criminal trespassing charges. In total, 57 protesters were arrested. The Travis County attorney’s office dropped all criminal trespass charges against Wednesday’s protesters because they did not find probable cause. DPS is pursuing felony assault charges against one journalist who was covering last week's protest.
On Monday, law enforcement officers made dozens of arrests again, this time after about 60 protesters formed encampments. Officers used pepper spray and flash-bang explosives to dispel the crowd of demonstrators.
Free speech experts say the university is within its rights to order the arrests of protesters who set up encampments, but they question whether last week’s protest, where authorities got involved early and before any major disruptions, crossed any lines.
UT-Austin President Jay Hartzell’s explanation of the university’s response and the police crackdown last week seemed at odds with the protections the university has previously touted.
In his email to the community last week, Hartzell said he had “credible indications” that the organizers of Wednesday’s protest were “trying to follow the pattern we see elsewhere, using the apparatus of free speech and expression to severely disrupt a campus for a long period.”
Across the state and around the country, pro-Palestinian demonstrations have erupted on college campuses. At Columbia University, administrators called New York Police Department to empty a campus encampment of pro-Palestinian demonstrators, which resulted in the arrest of more than 100 people.
[Campuses across Texas had pro-Palestinian demonstrations. Why did only UT-Austin crack down?]
In an April 25 email obtained by The Texas Tribune — addressed to fundraising staff who would be getting questions from donors about the university’s response — administrators described the intel they had. They mentioned social media postings that used identical language compared to protest organizers at Columbia University and other schools, as well as a concern that a non-UT affiliated group known as the Students for Justice in Palestine had a role in organizing the walkout.
Ahead of last week’s demonstration, organizers never indicated in public communications that they intended to stay past the university’s 10 p.m. curfew, incite violence or start encampments. Instead, in an Instagram post, organizers spoke of teach-ins on the South Lawn, an art workshop and a pizza break, according to an Instagram post from the organizing group.
[Faculty petition to hold no-confidence vote in UT-Austin president after protest response]
Though it’s standard for a few officers to be present to manage a sizable peaceful protest like the Wednesday walkout, free speech experts condemned the phalanx of law enforcement that descended on the campus when there was no indication of violence.
Preventing unlawful assembly, as DPS described the governor’s instructions, is a slippery slope that can lead to preventing assembly altogether, free speech experts said.
“Students that are demonstrating and doing so peacefully being arrested so quickly for trespassing does set up a dangerous precedent,” McClure said.
In explaining why law enforcement was called, UT-Austin spokesperson Brian Davis on Wednesday said student protesters had violated their “no masks” rule for demonstrations.
But Savannah Kumar, an attorney with ACLU of Texas, questioned whether a rule prohibiting face masks is enough to trump free speech protections. Immunocompromised students may have reasons to wear face masks. And rules should not dissuade or discourage people from exercising free speech, she said.
McClure said he expects legal challenges will follow the law enforcement response to Wednesday’s protest.
The question of hate speech
Abbott’s criticism of the protest came weeks after he issued an executive order requiring schools to revise their free speech policies to punish what he described as “the sharp rise in antisemitic speech and acts on university campuses.” He singled out groups like Palestine Solidarity Committee, which organized last week’s protest, as potential violators. He did not give examples of how the group may have engaged in antisemitic speech.
Pro-Palestinian demonstrators have faced similar accusations elsewhere. Earlier this month at Columbia University, protesters drew condemnation after some Jewish students reported feeling unsafe and harassed. Some protesters who appeared to be unaffiliated with the university verbally attacked Jewish students with antisemitic remarks, The New York Times reported. President Joe Biden denounced antisemitism on campuses amid the protests, calling it “reprehensible and dangerous.”
But while Texas’ political leaders have linked pro-Palestinian views with antisemitism, a peaceful pro-Palestinian demonstration shouldn’t be considered discriminatory harrassment, Morey said.
“Someone peacefully protesting and saying, ‘From the river to the sea,’ is not going to be severe, pervasive [or] objectively offensive, such that Jewish students who are offended by that speech are going to be unable to go to class,” Morey said. “It's not going to hit discriminatory harassment, just because Governor Abbott calls it hate speech or calls it antisemitic. ”
“From the river to the sea” is a common chant at pro-Palestinian demonstrations, alluding to the stretch of land from the Jordan River on the eastern flank of Israel and the occupied West Bank to the Mediterranean sea to the west. Pro-Palestinian activists say it’s a call for peace and equality in the Middle East. The American Jewish Committee has described it as an antisemitic “call-to-arms.”
“There is of course nothing antisemitic about advocating for Palestinians to have their own state,” the AJC says on its website. “However, calling for the elimination of the Jewish state, praising Hamas or other entities who call for Israel’s destruction, or suggesting that the Jews alone do not have the right to self-determination, is antisemitic.”
Former U.S. Rep. Justin Amash, a Republican from Michigan, last week also commented on how Abbott’s comments about arresting students for hate speech violated their constitutional rights to freedom of speech.
“If he’s arresting them for other reasons, then he should say so,” Amash said. “If he’s arresting them for their speech, then he’s violating the law, and his actions threaten everyone in the state, including everyone he claims to be protecting.”
Morey, of the Foundation for Individual Rights and Expression, said Abbott had engaged in clear "viewpoint discrimination” on Wednesday when he ordered state troopers to get involved in the UT-Austin protest.
“This was shocking. We have never seen anything quite like this where a governor is saying I'm going to preempt protests based on these views,” Morey said. “It sure seems like he is taking real liberties with the letter of the law because he personally, and maybe other folks that are affiliated with him in Texas government, find that speech objectionable.”
Reporters Will Melhado and Pooja Salhotra contributed to this story.
The Texas Tribune partners with Open Campus on higher education coverage.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/04/29/ut-austin-pro-palestinian-demonstrations-free-speech/.