In 2019, Texas guaranteed expansive First Amendment protections on college campuses with a new law intended to be a corrective to ideological conformity in higher education.
Then came the Oct. 7, 2023, attack by Hamas on Israel. Tents, loudspeakers and student protesters, some masked, some in kaffiyehs, soon followed at Texas universities.
So did the second thoughts.
Republicans in the Texas Legislature — including some who helped write the 2019 law — did an about-face earlier this month and approved a bill that would restrict how students can protest. The bill is awaiting Gov. Greg Abbott’s signature.
If he signs it, as expected, free speech advocates said Texas will enter new legal territory, just as Republicans across the country test the limits of their authority to tighten control over the culture on college campuses.
While states set many policies that affect how public universities are run, they have not typically tried to regulate student conduct with an act of law.
But the Texas bill would greatly expand the state’s influence over “expressive activities” on campus — which are defined to include what students wear, how much noise they make and the hours of the day when expression is allowed.
Many of the restrictions address common forms of protest at pro-Palestinian demonstrations: using drums or devices that amplify sound; wearing masks or face coverings to conceal someone’s identity; and lowering the American flag to replace it with the flag of another country or political cause.
Free speech scholars say many of the bill’s provisions may be too broad and general to survive a legal challenge. For instance, the bill would ban “expressive activities” in the last two weeks of each semester, as well as every day between 10 p.m. and 8 a.m. In theory, that could include gathering in small groups at night or wearing T-shirts with political slogans.
Critics have accused Texas of interfering with academic self-governance in an especially heavy-handed way, with a law that muzzles students in the very place they should be encouraged to express themselves.
“I don’t know that we’ve seen a law regulating campus expression that’s this restrictive,” said Tyler Coward, a lawyer with the Foundation for Individual Rights and Expression, a free speech group.
The Republican sponsor, State Senator Brandon Creighton, has pointed to the unrest on college campuses last year as the motivation and has rejected criticism that the new legislation undercuts the 2019 law, which he cosponsored.
“Both laws protect the First Amendment rights of students, faculty and staff,” Mr. Creighton told the Austin American-Statesman. (His spokeswoman did not respond to requests for comment.)
At the same time, Mr. Creighton acknowledged that demonstrations at universities in Texas were largely contained, unlike at other schools.
“While the world watched Columbia, Harvard and other campuses across the country taken hostage by pro-terrorist mobs last year, Texas stood firm,” Mr. Creighton said.
First Amendment scholars and free speech advocates, however, are warning that Texas is trying to police the speech of students and faculty — the law would also apply to university employees — in ways the Constitution does not allow.
Eugene Volokh, a senior scholar at Stanford University’s Hoover Institution whose opinions lean conservative, said the legislation could allow schools to punish quotidian student behavior, because prohibiting “expressive activities” between 10 p.m. and 8 a.m. is so sweeping.
“Talking to friends, wearing message-bearing T-shirts or, for that matter, reading a book or your phone or playing a video game or watching TV in your room” could get a student written up, Mr. Volokh said.
Many public universities have considered how they can restrict campus access to outsiders as a way to prevent protests from getting out of control. Texas aims to solve the problem, but in a way that legal experts said might violate the First Amendment: by limiting participation in demonstrations to students and employees. The 2019 law stated that “all persons” had a right to participate in demonstrations on campuses.
Free speech advocacy groups have urged Governor Abbott to veto the bill. The American Civil Liberties Union of Texas said that, with such broad restrictions, the bill “threatens the free expression of all Texans, regardless of political beliefs.”
In a letter to the governor, the Foundation for Individual Rights and Expression argued that Texas universities already have the power to regulate protests and that this bill “will inevitably lead to censorship and litigation.” (The letter also noted that a federal court recently stopped Indiana University from enforcing a policy that banned expressive activity after 11 p.m.)
Mr. Coward of FIRE said the governor’s office had not responded. A spokesman for Governor Abbott said the bill was among 1,000 awaiting his review and that he was closely looking at each one.
Just as they did in 2019, Republicans read the political moment and moved forward with a measure that fed into the high emotions surrounding college protests. And the legislation reflects the belief among many Republicans that schools are not doing enough to punish students and faculty who intimidate or harass people, or whose actions veer into antisemitism.
But this time, Mr. Coward said, “whatever the legislative intent, this was a sloppy bill.”
In Texas, many faculty members and students see curbs on protests as deliberate efforts to silence their voices — similar to how conservatives there felt before the 2019 law was enacted.
“The Texas Legislature could have just stuck with the spirit of the 2019 measure, and then left it to universities to address any specific issues,” said Jason Brownlee, a professor of government at the University of Texas at Austin.
But, he said, “it’s pretty clear there’s a viewpoint that emerged in 2024” — referring to pro-Palestinian activism — “that the State of Texas does not want publicly expressed.
With their often slow and ineffective responses to the pro-Palestinian protests, many university leaders left a void that motivated politicians have tried to fill.
“We do need to have some conduct rules — some notion of what is the appropriate time, place and location for how you voice protest,” said Rajiv Vinnakota, president of the Institute for Citizens & Scholars, which works with college administrators on issues like reducing ideological conflict on campus.
But, he said, “you have to create the space for students to learn, make mistakes and practice.”
The Texas bill, Mr. Vinnakota noted, does the opposite of what many conservatives have urged for years: presenting students with a variety of viewpoints.
Jeremy W. Peters is a Times reporter who covers debates over free expression and how they impact higher education and other vital American institutions.
The post Texas Passed a Law Protecting Campus Speech. It’s on the Verge of Rolling It Back. appeared first on New York Times.
