Last week, as Texas State students gathered to mourn the assassination of conservative political activist Charlie Kirk, another student began taunting them.
鈥淗i, my name is Charlie Kirk,鈥� he announced, before collapsing to the ground, pretending to be shot. As he walked away, someone on video can be heard saying, 鈥測ou鈥檙e going to get expelled, dude.鈥�
Gov. agreed, telling the university on social media to 鈥渆xpel this student immediately. Mocking assassination must have consequences.鈥� Texas State President Kelly Damphousse later confirmed that the student was no longer enrolled, that the university 鈥渨ill not tolerate behavior that mocks, trivializes, or promotes violence.鈥�
Eugene Volokh, a First Amendment expert at UCLA and Stanford, read those statements skeptically.
鈥淢ocking assassination is protected by the First Amendment,鈥� he said. 鈥淪peech that mocks, trivializes or promotes violence is protected by the First Amendment, generally speaking.鈥�
Even as Texas鈥� Republican leaders have vowed to continue Kirk鈥檚 fight for free speech on college campuses, many have also demanded consequences for people who have reacted to his death by expressing sentiments they disagree with. Their actions may run afoul of the First Amendment, although the specific facts would have to be litigated in court, legal experts say.
This comes amid a broader sea change in Texas Republicans鈥� approach to free speech and academic freedom. This year, lawmakers walked back some free speech protections enshrined in state law in 2019; gave governor-appointed university regents greater oversight of curriculum; and recently a professor for what she taught in the classroom.
This pendulum swing, especially apparent in the response to Kirk鈥檚 death, reflects a larger hypocrisy in free speech enforcement, said Adam Steinbaugh, senior attorney with the Foundation for Individual Rights and Expression.
鈥淔ree speech is as American as apple pie. Everyone says that they love it, but it gets a lot harder for people when it is speech that they find offensive,鈥� Steinbaugh said. 鈥淎t that point, they start looking for the exits, for any way that they can stretch one of the exceptions of the First Amendment to reach the speech that they don't like.鈥�
The pendulum swing
In 2017, after a white nationalist rally in Charlottesville, Virginia, turned violent, a Texas man put out a press release: 鈥淭ODAY CHARLOTTESVILLE TOMORROW TEXAS A&M.鈥� Alt-right speaker Richard Spencer signed on to speak at the rally in College Station, before , citing safety concerns.
This decision came at a time when universities, in Texas and nationally, were facing significant blowback for restricting or by conservative speakers, fueling a narrative that right-leaning voices were being unfairly silenced.
This outrage made its way to the Texas Legislature, which in 2019 passed requiring that all outdoor spaces on university campuses be designated as open forums for public speech, and prohibiting universities from considering anticipated controversy when deciding whether to allow a speaker on campus.
鈥淥ur college students, our future leaders, they should be exposed to all ideas, I don鈥檛 care how liberal they are or how conservative they are,鈥� state Sen. , the Houston Republican who authored the bill, said at a hearing. 鈥淪ometimes we feel offended by what someone else says, and that鈥檚 just too bad in my book.鈥�
Abbott said the law would stop universities from 鈥渂anning free speech鈥� on campus. 鈥淪houldn鈥檛 have to do it, the First Amendment guarantees it,鈥� . 鈥淣ow it鈥檚 law in Texas.鈥�
Some First Amendment experts looked askance at this ostensibly positive legislation. Mary Ann Franks, a law professor at George Washington University, said it played into a strategy pushed by conservative groups, including Kirk鈥檚 Turning Point USA, to whip up anger toward higher education.
鈥淭hat was the way to set up this really harmful framework that was trying to vilify students and universities as being intolerant,鈥� she said. 鈥淵ou then set them up to say, 鈥榳ell, whatever we do against these bad universities is actually okay.鈥欌��
As this narrative of 鈥渓iberal indoctrination鈥� on college campuses took hold, Texas legislators exerted tighter and tighter control over universities. In 2023, they , and tried to get rid of tenure for professors.
When on college campuses nationwide over the war in Gaza in 2024, the president of the University of Texas at Austin called in the state police to quell the largest protests, drawing praise from Republican state leaders.
In response, lawmakers rolled back some of the protections enshrined in 2019. A , approved by the Legislature and signed by Abbott in June, restricts who can protest on campus and when, barring the use of amplification devices during class hours or expressive activity at night or at the end of the semester.
earlier this month, saying it鈥檚 overly broad and would have unintended consequences. It could be used to punish students for doing things like playing music, worshipping, wearing a Make America Great Again Hat or writing an op-ed during the nighttime hours, FIRE said in statements.
鈥淚t's human nature to say, I don't like this speech, let's find a way to stop it,鈥� Steinbaugh said. 鈥淭hat is why the First Amendment is such an important limitation on government power, because it recognizes 鈥� if each of us gets to say, 鈥榶ou don't get to speak,鈥� then pretty much no speech will be saved.鈥�
Kirk鈥檚 death tests free speech commitments
The ongoing tension around campus free speech was already running hot in Texas after the firing of two professors earlier this month 鈥� for how she taught about gender identity, and another at Texas State for . Texas A&M鈥檚 president amid political pressure for not responding more aggressively sooner.
And then came the assassination of Kirk on a college campus. Texas鈥� Republican lawmakers, many of whom were friends with Kirk and his family, publicly grieved his passing and condemned those who were celebrating his death.
On social media, Abbott of a Texas Tech student who made derogatory statements toward people at a Kirk vigil. That student is no longer enrolled at the university, a spokesperson confirmed. At a press conference, he said these reactions called for a 鈥渄ramatic course correction.鈥�
鈥淎 place where we can engage in that course correction is in our schools and on our campuses, whenever we see students who are celebrating an assassination,鈥� he said. 鈥淭hat goes beyond the bounds of what is humane鈥� and it must end.鈥�
Lt. Gov. and House Speaker announced new committees to explore issues of civil discourse and freedom of speech on campus.
鈥淭he political assassination of Charlie Kirk 鈥� and the national reaction it has sparked, including the public celebration of his murder by some in higher education 鈥� is appalling and reveals a deeper, systemic problem worth examining,鈥� Burrows said in a statement.
But any protections for free speech on campus also must extend to public celebration, Steinbaugh said, no matter how distasteful leaders and members of the public may find it.
鈥淒istasteful is when the First Amendment kicks in,鈥� he said. 鈥淲hen you have speech that is very unpopular, especially if it's unpopular with political leaders, that is when you want to be able to lean on the First Amendment to say, let's slow down. You can't punish someone just because you think this speech is clearly offensive or egregious.鈥�
There are some limits 鈥� students can鈥檛 incite or solicit violence, for example 鈥� but the bar is quite high to prove in court. If a student ripped up signs or got into a physical altercation, they could potentially face other consequences, but simply celebrating in front of grieving students is likely protected speech, legal experts said.
In a statement, a spokesperson for Abbott said 鈥渁ny student who violates their school's code of conduct by condoning or inciting political violence must face swift disciplinary action.鈥� A university code of conduct would still be secondary to the protections of the First Amendment, which the courts have generally interpreted widely in support of college students鈥� right of expression, said Keith Whittington, a law professor at Yale University.
But getting justice for a free speech violation is difficult, requiring a lawsuit to slog its way through the court system. It鈥檚 an imperfect deterrent for universities, Whittington acknowledged.
鈥淵ou might win some money, maybe you鈥檒l get reinstated, but by then, from the university officials鈥� perspective, or government officials鈥� perspective, the controversy has blown over,鈥� he said. 鈥淚f you lose a court case three years from now, you're willing to do that in order to satisfy the immediate political needs.鈥�
For decades, Whittington said, that approach would have been anathema to Republicans鈥� essentially libertarian approach to free speech. But as campus wars have heated up, the ground has shifted.
鈥淲e start seeing some people, even within the conservative intellectual and legal movements, who are voicing about free speech and the kinds of protections that had developed over the course of the 20th century, and would like to roll some of that back,鈥� he said.
After the violent murder of a speaker on a college campus, it鈥檚 easy to understand why universities are on edge about students celebrating or mocking the incident, said Volokh, the UCLA First Amendment expert. One in three college students nationwide said it is acceptable to use violence to stop a speaker, up from one in five in 2020, .
鈥淭his is the last thing we want to see more of, and if somebody's out there encouraging murders at universities or praising murders at universities 鈥� I can see why people are drawing these lines,鈥� he said.
But at the end of the day, the First Amendment protections are clear.
鈥淚t's important to apply those rules as they're understood, and apply them even-handedly,鈥� he said. 鈥淎nd there is no exception to the First Amendment for praise of violence.鈥�