Was the University of Texas Wrong to Arrest 57 Protesters?

Where to Draw the Line on Speech?

​As student pro-Palestine protests evolved into harassment and shut-downs of the University of Southern California and Columbia University campuses, the University of Texas was presented with a Gordian knot of free-speech issues. When University of Texas protesters planned a march through campus, administrators said they had intelligence that non-student activists were planning on leading students to occupy the campus with a tent city (sleeping on the campus lawn is against university rules). This could have shut down the university.
 
With the backing of Gov. Gregg Abbott, police chose to simply cut the knot by arresting 57 peaceful protesters on campus. That event leaves us with hard questions about the limits and protections of speech rights within the academy.
 
In late March, Texas Gov. Greg Abbott ordered public universities to revise their free speech policies, specifically targeting antisemitic rhetoric. The governor’s response is understandable after lax concern shown by the former presidents of Harvard and other institutions about on-campus antisemitism. But viewpoint-based bans on rhetoric rather than behavior had the practical effect of targeting pro-Palestine student groups, which are often wellsprings of intemperate speech.
 
The governor’s executive order put the University of Texas in an awkward position. The First Amendment applies specifically to the federal government, and the states via the Fourteenth Amendment. Courts have held freedom of speech and assembly to apply to public universities as well. Under both the U.S. and Texas Constitutions, the University of Texas cannot unduly restrict these rights. While the law allows for “reasonable time, place, and manner” restrictions to ensure public safety and order, these must be neutrally applied, without viewpoint discrimination.
 
Despite this, many of the recent arrests of the protesters at the University of Texas were arguably necessary, given the warnings on which they were based. Columbia University demonstrated that laxity about existing time, place, and manner restrictions led to students living in tents, shutting down live instruction, and violently taking over a building. Columbia finally demanded students leave or face suspension. Some who broke into and occupied an academic building will likely face expulsion. At USC, potentially violent protests have shut down that school’s commencement.
 
In light of events at other universities, it is easy to see the UT administrators’ dilemma. Should they have stood by to see if their intelligence regarding planned disruptions was correct, acting only if the worst came to pass? This might have led to the same worst-of-both-worlds scenario we saw at Columbia, where classrooms and open discourse were shut down and the school still had to rely on police to clear out the occupiers. At such a point, how many cracked skulls would it have taken to clear the University of Texas?
 
For their part, students, faculty, and advocacy groups argue that the arrests of peaceful protesters who announced their march in advance was disproportionate. They also point to a 2019 Texas state law that designates common outdoor areas on public university campuses as traditional public forums. Supported by Gov. Abbott and conservative lawmakers, this law protects broad expressive activities, provided they do not disrupt campus functions or break the law. But before we cue the petards to be hoisted, consider that a planned occupation would definitely have disrupted instruction and broken the law. But did their evidence of a planned occupation meet the standard of a “clear and present danger?
 
This tension at the University of Texas reflects the larger national debate about the complex nature of speech rights, especially in academic settings where the free and open exchange of ideas is to be encouraged, not quelled. There is a legitimate need to maintain order and safety on campus. There is also a constitutional imperative to protect free speech, including speech many find offensive.
 
Gov. Abbott’s crackdown on campus antisemitism reflected commendable concern. But hate speech laws are notoriously overbroad and often unworkable. “True threats” are a legitimate (and necessary) reason for authorities to intervene. Most likely, fighting words and incitement to violence likewise can be restricted and punished. But some latitude is needed for more ambiguous chants like “from the river to the sea” – the plain meaning of which is the violent abolition of Israel but could be taken by a student as merely a call for freedom or a criticism of “colonialism.” Never mind how doubtful you may find that interpretation or blinkered you may find that tired trope. The First Amendment protects all speech, including stupid speech. Thus, any intrusion into speech rights that Abbott permits today could enable further restrictions down the line (and restrict in directions the governor may not like).
 
Misunderstandings about the First Amendment are at the core of such dilemmas. It is odd that elite private universities, Columbia, Yale, and USC, which have more latitude in enforcing discipline, stood by in stupefied inaction at the harassment of Jewish students and disruption of classroom learning. One protester at Yale stabbed a Jewish student in the eye with a Palestinian flag. True threats and fighting words have a way of becoming acts of violence, which is why Columbia finally did bar a student who said “Zionists don’t deserve to live.”
 
Universities, public and private, must never forget the imperative that universities remain centers of free inquiry and discussion, reflecting the constitutional rights and values they are built to impart. They must also protect their students and classrooms. Like all dilemmas, this one at least contains teachable moments. Where better to teach these intricacies of the First Amendment?