In Texas, Free Speech Isn’t Afraid of the Dark

“Texas has yet to learn submission to any oppression, come from what source it may.”

​- Sam Houston

Texas state capitol

​The First Amendment has never been a license for Americans to protest whenever they want, however they want. Time, place, and manner restrictions still apply. For example, protesters cannot take over Main Street or a highway whenever they please. They can’t trespass on private property, be as loud as they want, violate capacity restrictions, or bang pots and pans and set off fireworks in the middle of the night.

Common-sense restrictions against such behavior do not deprive us of our constitutional right to free expression. Such restrictions, however, must be reasonable – designed to protect the public from unwarranted disruption, not from ideas. In Ward v. Rock Against Racism (1989), the U.S. Supreme Court held that restrictions must be content-neutral and narrowly tailored. The subject matter of a protest is never the point. Limitations must be specific, not thinly veiled attempts at harassment of disfavored groups or ideas.

Now Texas officials seem to want the scales tipped. In this era of overreach, it’s not surprising that a district court judge found the state went too far in its recent effort to limit expressive activity on university campuses. Remember the whole “middle of the night” issue we mentioned above? Well Texas decided to turn a legitimate concern about street disruption into a ban on “expressive activity” at “any time after dark” (10 p.m. to 8 a.m.) when it enacted S.B. 2972 this summer.

Federal Judge David Alan Ezra was unimpressed, issuing a temporary block of this law:

“The First Amendment does not have a bedtime of 10:00 p.m. The burden is on the government to prove that its actions are narrowly tailored to achieve a compelling governmental interest. It has not done so.”

Texas also went too far in failing to keep its restrictions on subject matter content-neutral. In fact, state leaders went full-tilt the other direction, explicitly banning “any speech or expressive conduct protected by the First Amendment” after 10 p.m.

“Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation,” plaintiff’s attorney Adam Steinbaugh told the Free Speech Center. “We’re thankful that the court stepped in and halted a speech ban that inevitably would’ve been weaponized to censor speech that administrators disagreed with.”

The law, wrote the editorial board of The Daily Texan at the University of Texas at Austin, “protects lawmakers, not students.”
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In Texas, the stars at night are big and bright – and Texans have never been afraid of the dark, nor of speaking their minds. “I’m from Texas,” Willie Nelson once said, “and one of the reasons I like Texas is that no one is in control.”

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