Texas legislators say they are protecting free speech on campus by banning ‘expressive activities’ at night

Five years ago, Brandon Creighton, a Republican who represents parts of five southeastern Texas counties in the state Senate, co-sponsored a law, Senate Bill 18, aimed at protecting freedom of expression at public universities. This year, Creighton introduced a bill, S.B. 2972, that would dial back those protections. Civil libertarians are urging Gov. Greg Abbott to veto the new bill, warning that it contradicts the state’s avowed commitment to vigorous debate representing a wide range of viewpoints.

In a recent Houston Chronicle op-ed piece, First Amendment lawyer Caitlin Vogus and journalist Jimena Pinzon call S.B. 2972 “one of the most ridiculous anti-speech laws in the country.” Among other things, they note, the bill includes an “unfathomably broad” provision that “would ban speech at night—from study groups to newspaper reporting—at public universities in the state.” If Abbott signs the bill, they say, “it will inevitably face a First Amendment challenge that Texas simply can’t win.”

Why have Texas legislators retreated from their support for free speech on campus? In 2019, Republicans were worried about university speech restrictions that discriminated against or disproportionately affected conservatives. Nowadays, they are worried about potentially disruptive anti-Israel activity by left-leaning protesters. But that sort of contingent support for freedom of speech undermines the principle that legislators defended in 2019, which protects speakers regardless of their opinions, ideology, or political affiliation.

S.B. 18, which Abbott proudly signed after it passed the state legislature with broad, bipartisan support, declared that “freedom of expression is of critical importance and requires each public institution of higher education to ensure free, robust, and uninhibited debate and deliberations.” To promote that “uninhibited debate,” the law recognized that “all persons may assemble peaceably on the campuses of institutions of higher education for expressive activities, including to listen to or observe the expressive activities of others.”

S.B. 18 also stipulated that “common outdoor areas” on public university campuses “are deemed traditional public forums,” meaning they are open to lawful expressive activity as long as it “does not materially and substantially disrupt the functioning of the institution.” And the law sought to protect invited speakers from ideological discrimination by barring public universities from considering content, viewpoint, or “any anticipated controversy” in setting fees for using campus facilities.

“Although the First Amendment to the U.S. Constitution guarantees free speech
in America, some colleges in Texas were banning free speech on campus,” Abbott explained in 2020. “No more. I signed Senate Bill 18…into law to protect free speech on Texas college campuses.”

S.B. 2972 moves in the opposite direction. It qualifies the right of “all persons” to peacefully assemble for expressive activities by limiting it to a university’s students and employees. It allows restrictions on the use of “common outdoor areas” that are “reasonable in light of the purpose of the area to which the restrictions apply,” giving administrators more discretion than S.B. 18, which allows “time, place, and manner” rules that are “narrowly tailored to serve a significant public purpose.” And while current law requires that such restrictions be “content-neutral” as well as “viewpoint-neutral,” S.B. 2972 removes the former requirement.

The new bill also allows a university to “designate the areas on the institution’s campus that are public forums,” which sound like the “free speech zones” that have provoked First Amendment challenges. It deletes the current requirement that universities “provide for ample alternative means of expression.”

S.B. 2972 targets tactics associated with campus protests against the war in Gaza. It prohibits the use of sound amplification, “drums or other percussive instruments,” and masks or “other means of concealing a person’s identity” when the aim is to “obstruct” enforcement of a university’s rules, “interfere” with the work of police or university employees, or “intimidate others.”

Two other provisions are especially striking. The bill requires universities to prohibit student groups from “inviting speakers to speak on campus” during the last two weeks of a semester and instructs them to ban “expressive activities on campus” between 10 p.m. and 8 a.m.—a vague and potentially sweeping restriction that could affect a wide range of constitutionally protected conduct.

“Both laws protect the First Amendment rights of students, faculty and staff,” Creighton told the Austin American-Statesman in May. “S.B. 2972 ensures that speech stays free, protest stays peaceful, and chaos never takes hold.” But as the Foundation for Individual Rights and Expression (FIRE) noted in a June 5 letter urging Abbott to veto the bill, the new restrictions “would significantly undermine Texas’ strong statutory protections for student and faculty expression on public college campuses.”

Tyler Coward, FIRE’s lead counsel for government affairs, warned that S.B. 2972 “permits restrictions on expressive activity based only on anticipated disruption, thereby encouraging shout-downs and allowing the use of a ‘heckler’s veto’ that courts have repeatedly held violates the First Amendment.” It also “removes the requirement that institutions designate open outdoor areas as public forums, despite longstanding judicial precedent affirming their public forum status.”

The bill’s “blanket ban on expressive activities” between 10 p.m. and 8 a.m. is so broad that it “would prohibit students from wearing expressive apparel like a MAGA shirt or hat during those times,” Coward wrote. In May, he noted, a federal judge issued a preliminary injunction against “Indiana University’s policy restricting expressive activities between 11 p.m. and 6 a.m.” after concluding that it probably violated the First Amendment.

Eugene Volokh, a First Amendment specialist who is a senior scholar at Stanford University’s Hoover Institution, also was struck by the expansive language of S.B. 2972’s ban on “expressive activities” late at night or early in the morning, which probably was inspired by overnight anti-Israel protests but sweeps much more broadly. Under that rule, Volokh suggested in an interview with The New York Times, “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 trigger disciplinary action.

“Are universities likely to enforce their statutorily mandated policies banning overnight speech against students engaged in speech like that?” Vogus and Pinzon write. “Probably not. But they could, and that shows just how sloppy and overbroad this law is.” They suggest universities could “use such policies selectively to crack down on disfavored speech.” If administrators discover that “the student newspaper’s editors discussed and wrote an editorial ripping a university policy to shreds while on campus in the wee hours of the morning,” for example, “the ban on overnight speech would provide a solid tool for retaliation.”

In his letter to Abbott, Coward acknowledged Texas legislators’ concerns about “campus protests elsewhere that may have crossed existing legal lines.” But he noted that “colleges and universities already possess ample authority to address materially and substantially disruptive conduct.”

The American Civil Liberties Union of Texas shares FIRE’s concerns. “S.B. 2972 threatens the free expression of all Texans, regardless of political beliefs,” says Caro Achar, the organization’s engagement coordinator for free speech. “This bill imposes broad restrictions that allow school officials to restrict how, when, and where Texans can speak on campus—undermining the First Amendment rights of students, faculty, staff, and the general public.”