Four years ago, as Texas Republicans worried that conservative voices were being silenced at universities, Gov. signed a bill that .
鈥淪ome colleges are banning free speech on college campuses. Well, no more because I'm about to sign a law that protects free speech on college campuses in Texas,鈥� Abbott said in 2019.
And six months ago, during a celebration of Free Speech Week, University of Texas at Austin administrators touted the school鈥檚 expansive protections for free speech on campus 鈥� including speech that was anti-war or considered hate speech.
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鈥淗ate speech is not a category of speech the government can restrict,鈥� Amanda Cochran-McCall, the university鈥檚 vice president for legal affairs, said at a school-affiliated Free Speech Week in October. 鈥淚magine if the government at the whim of a political party could just decide at any time what constitutes hate speech, and then just start arresting people for engaging in it.鈥�
But since last week, Abbott has deployed the Department of Public Safety to help crack down on separate protests at the University of Texas at Austin that he vociferously disagreed with. Campus leaders have defended their orders to students to disperse or face criminal trespassing charges.
As state troopers , Abbott cheered the arrests.
鈥淪tudents joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled,鈥� on social media platform X.
In Texas and across the country, pro-Palestinian demonstrations in response to the Israel-Hamas war have put state and university leaders鈥� prior free speech commitments to the test. UT-Austin鈥檚 heavy-handed response to the protests 鈥� and the state GOP leaders鈥� support of the arrests 鈥� are a stark contrast to their vigorous celebration and defense of protected speech in previous years.
鈥淭he big irony here is that the political right has been for years and years and years criticizing campuses for not enabling enough free speech,鈥� said Kevin McClure, a professor of higher education at the University of North Carolina Wilmington. 鈥淎nd now they are vociferously arguing in favor of repressing students鈥� free speech rights.鈥�
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UT-Austin officials have said they had reason to believe that protest organizers planned to take over school spaces, like pro-Palestinian demonstrators have done at other campuses across the country. But free speech advocates wonder whether those fears were enough to crack down on protesters, raising questions about when speech is protected in Texas universities 鈥� and who gets to enjoy those protections.
鈥淲hat we're seeing here is this hypocrisy of big double standards saying we love free speech, not this speech,鈥� said Alex Morey, the director of campus rights advocacy at the Foundation for Individual Rights and Expression.
Rules and protections
Tensions at the UT-Austin campus come five years after Texas Republicans banded together around a new law to boost free speech protections at Texas universities.
The law established all common outdoor areas at public universities as traditional public forums, allowing anyone 鈥� not just students 鈥� to exercise free speech there. It also prevented universities from considering 鈥渁ny anticipated controversy related to the event鈥� when approving guest speakers on campus.
鈥淪tudents might be surprised to know that free speech also includes other things, though, things like the right not to speak or the right to wear an item in protest of war or to use strong 鈥� even offensive words and phrases 鈥� to convey political messages,鈥� Cochran-McCall said at last year鈥檚 Free Speech Week.
On the morning after last week鈥檚 campus arrests, UT-Austin staff taped 鈥淣OTICE鈥� flyers in front of the school鈥檚 tower with a notably different tone. Instead of highlighting what was permitted, the flyers detailed the university鈥檚 litany of limitations for protests: no masks, no disguises, no encampments, no loud sounds that interfere with learning and no blocking entrances.
Texas universities have the right to create 鈥渞easonable time, place and manner鈥� restrictions on free speech activities. When those rules are violated, universities can discipline students, said Steven McGuire, who specializes in campus freedoms at the American Council of Trustees and Alumni.
Free speech also loses First Amendment protections when it amounts to discriminatory harassment or true threats that incite imminent violence or destruction of public property.
Last week鈥檚 protest showed no signs of violence before police got involved. Authorities interrupted the students鈥� march within an hour, forming a barricade at the front of the crowd with their bikes. The officers used loudspeakers to warn students to disperse or face criminal trespassing charges. In total, 57 protesters were arrested. The Travis County attorney鈥檚 office against Wednesday鈥檚 protesters because they did not find probable cause. DPS is against one journalist who was covering last week's protest.
On Monday, law enforcement officers made , this time after about 60 protesters formed encampments. Officers used pepper spray and flash-bang explosives to dispel the crowd of demonstrators.
Free speech experts say the university is within its rights to order the arrests of protesters who set up encampments, but they question whether last week鈥檚 protest, where authorities got involved early and before any major disruptions, crossed any lines.
UT-Austin President Jay Hartzell鈥檚 explanation of the university鈥檚 response and the police crackdown last week seemed at odds with the protections the university has previously touted.
In his email to the community last week, Hartzell said he had 鈥渃redible indications鈥� that the organizers of Wednesday鈥檚 protest were 鈥渢rying to follow the pattern we see elsewhere, using the apparatus of free speech and expression to severely disrupt a campus for a long period.鈥�
Across the state and around the country, pro-Palestinian demonstrations have erupted on college campuses. At Columbia University, administrators called New York Police Department to empty a campus encampment of pro-Palestinian demonstrators, which resulted in the arrest of more than 100 people.
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In an April 25 email obtained by The Texas Tribune 鈥� addressed to fundraising staff who would be getting questions from donors about the university鈥檚 response 鈥� administrators described the intel they had. They mentioned social media postings that used identical language compared to protest organizers at Columbia University and other schools, as well as a concern that a non-UT affiliated group known as the Students for Justice in Palestine had a role in organizing the walkout.
Ahead of last week鈥檚 demonstration, organizers never indicated in public communications that they intended to stay past the university鈥檚 10 p.m. curfew, incite violence or start encampments. Instead, in an Instagram post, organizers spoke of teach-ins on the South Lawn, an art workshop and a pizza break, according to an Instagram post from the organizing group.
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Though it鈥檚 standard for a few officers to be present to manage a sizable peaceful protest like the Wednesday walkout, free speech experts condemned the phalanx of law enforcement that descended on the campus when there was no indication of violence.
Preventing unlawful assembly, as DPS described the governor鈥檚 instructions, is a slippery slope that can lead to preventing assembly altogether, free speech experts said.
鈥淪tudents that are demonstrating and doing so peacefully being arrested so quickly for trespassing does set up a dangerous precedent,鈥� McClure said.
In explaining why law enforcement was called, UT-Austin spokesperson Brian Davis on Wednesday said student protesters had violated their 鈥渘o masks鈥� rule for demonstrations.
But Savannah Kumar, an attorney with ACLU of Texas, questioned whether a rule prohibiting face masks is enough to trump free speech protections. Immunocompromised students may have reasons to wear face masks. And rules should not dissuade or discourage people from exercising free speech, she said.
McClure said he expects legal challenges will follow the law enforcement response to Wednesday鈥檚 protest.
The question of hate speech
Abbott鈥檚 criticism of the protest came weeks after he issued requiring schools to revise their free speech policies to punish what he described as 鈥渢he sharp rise in antisemitic speech and acts on university campuses.鈥� He singled out groups like Palestine Solidarity Committee, which organized last week鈥檚 protest, as potential violators. He did not give examples of how the group may have engaged in antisemitic speech.
Pro-Palestinian demonstrators have faced similar accusations elsewhere. Earlier this month at Columbia University, protesters drew condemnation after some Jewish students reported feeling unsafe and harassed. Some protesters who appeared to be unaffiliated with the university verbally attacked Jewish students with antisemitic remarks, reported. President Joe Biden amid the protests, calling it 鈥渞eprehensible and dangerous.鈥�
But while Texas鈥� political leaders have linked pro-Palestinian views with antisemitism, a peaceful pro-Palestinian demonstration shouldn鈥檛 be considered discriminatory harrassment, Morey said.
鈥淪omeone peacefully protesting and saying, 鈥楩rom the river to the sea,鈥� is not going to be severe, pervasive [or] objectively offensive, such that Jewish students who are offended by that speech are going to be unable to go to class,鈥� Morey said. 鈥淚t's not going to hit discriminatory harassment, just because Governor Abbott calls it hate speech or calls it antisemitic. 鈥�
鈥淔rom the river to the sea鈥� is a common chant at pro-Palestinian demonstrations, alluding to the stretch of land from the Jordan River on the eastern flank of Israel and the occupied West Bank to the Mediterranean sea to the west. Pro-Palestinian activists say it鈥檚 a call for peace and equality in the Middle East. The American Jewish Committee has described it as an antisemitic 鈥溾��
鈥淭here is of course nothing antisemitic about advocating for Palestinians to have their own state,鈥� the AJC says on its website. 鈥淗owever, calling for the elimination of the Jewish state, praising Hamas or other entities who call for Israel鈥檚 destruction, or suggesting that the Jews alone do not have the right to self-determination, is antisemitic.鈥�
Former U.S. Rep. Justin Amash, a Republican from Michigan, last week also commented on how Abbott鈥檚 comments about arresting students for hate speech violated their constitutional rights to freedom of speech.
鈥淚f he鈥檚 arresting them for other reasons, then he should say so,鈥� Amash said. 鈥淚f he鈥檚 arresting them for their speech, then he鈥檚 violating the law, and his actions threaten everyone in the state, including everyone he claims to be protecting.鈥�
Morey, of the Foundation for Individual Rights and Expression, said Abbott had engaged in clear "viewpoint discrimination鈥� on Wednesday when he ordered state troopers to get involved in the UT-Austin protest.
鈥淭his was shocking. We have never seen anything quite like this where a governor is saying I'm going to preempt protests based on these views,鈥� Morey said. 鈥淚t sure seems like he is taking real liberties with the letter of the law because he personally, and maybe other folks that are affiliated with him in Texas government, find that speech objectionable.鈥�
Reporters and contributed to this story.
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