A New Constitutionally Dodgy Texas Law Threatens Campus Speech

For a bill intended to strengthen the “expressive rights” of students and employees at Texas’ public universities — at least according to its author — Senate Bill 2972 takes an odd approach. Signed by Gov. Greg Abbott on June 20 and taking effect on Sept. 1, the new law restricts who can join campus protests and how, when and where they can do it.

It also provides police officers with wide latitude to decide whether protesters can cover their faces, a fact sure to further chill the hearts of international students already fearful of being targeted for deportation for daring to believe that America’s commitment to free speech applies even when the person in the White House doesn’t like what’s being said.

State Sen. Brandon Creighton, author of SB 2972, argued during a Senate hearing that the bill was intended to strengthen existing state laws surrounding the expressive rights of students and employees at Texas public institutions. Creighton said that the legislation would help prevent chaos and disruption by allowing university governing boards to determine what parts of campus may be used as public forums.

Students, political organizers, and lawyers who defend First Amendment freedoms might be relieved that Creighton didn’t say he deliberately wanted to weaken free speech rights. One hates to imagine what an anti-free speech bill from Creighton would look like if this is meant to strengthen it.

SB 2972 makes sweeping changes to 2019’s SB 18, which Creighton co-sponsored. That law broadened protections on free speech at public campuses. At first, conservatives angered over the hostile reception given to right-leaning speakers on left-leaning campuses supported it. Six years and countless pro-Palestine and pro-immigrant protests later, the conservative Legislature appears to have had a change of heart.

“S.B. 2972 threatens the free expression of all Texans, regardless of political beliefs,” said Caro Achar, engagement coordinator for free speech at the ACLU of Texas.”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.”

SB 2972 targets expressive activity, defined as “any speech or expressive conduct protected by the First Amendment. ” It carries over existing language that prohibits behavior that is either unlawful or materially and substantially disruptive to the institution's functions.

Under SB 18, all persons in Texas were afforded First Amendment rights to peaceful expression on Texas’ public campuses. SB 2972 removes every mention of the term “all persons,” instead replacing it with the phrase “students enrolled at and employees of an institution of higher education” or “members of the university community. " This leaves it to individual schools to determine who can and can not engage in expressive activity on public campuses based on whether they are affiliated with the school.

The governing boards for Texas’ public universities, including the University of Texas System, Texas State System, A&M System and Texas Tech System, are now charged with creating public forum areas on each of their campuses. In 2004, the U.S. District Court for the Northern District of Texas overturned Texas Tech’s speech code for violating the Constitution when it attempted to create specific public forums that ultimately limited student expression. The court ruled that, at a minimum, all sidewalks on public campuses would be considered public forums.

“S.B. 2972 threatens the free expression of all Texans, regardless of political beliefs.” - Caro Achar, ACLU of Texas.

tweet this

Creighton said his bill targets and restricts “unsafe behaviors” on public campuses. SB 2972 prohibits students and employees from using devices for sound amplification, like a speaker, during class hours, which typically run from 8 a.m. to 9:45 p.m., if used to intimidate others, interferes with campus operations or interferes with an employee's or police officer’s job. The bill prohibits expressive activities during the last two weeks of a semester if they use common outdoor areas in a way that results in material and substantial disruption to a school, involve guest speakers coming to campus, utilize sound amplification or include drums or other percussive instruments.

Camping or placing tents on campus is now outlawed at the state level. Face coverings are banned if a police officer thinks they are intimidating or otherwise interfere with their job. Students are not allowed to lower school, state or U.S. flags to replace them with different flags, a thing that has not happened at Texas public universities but did occur at the University of North Carolina at Chapel Hill and the University of California, Los Angeles in spring 2024.

The section that has caused some of the most extensive controversy bans expressive activity between 10 p.m. and 8 a.m. On the upside, this could allow 15 whole minutes for speakers to use amplification devices between the end of classes and the start of the blackout period, provided the cops or school employees don’t mind.

The restriction on nighttime activity is not the first of its kind. Indiana University created a similar, if slightly more lenient, policy last November, prohibiting expressive activity on campus from 11 p.m. to 6 a.m., in response to pro-Palestine protests. A federal judge issued a preliminary injunction against IU because “the policy likely burdens substantially more speech than necessary to further the university’s interest in public safety and thus lacks narrow tailoring. Plaintiffs are likely to succeed on the merits of their claim that the policy violates the First Amendment.” The American Civil Liberties Union in Indiana continues to advocate strongly against the policy. The Texas chapter of the ACLU has taken a similar stance in response to SB 2972.

Student Activism as the Target

In 2024, over 140 U.S. universities were suddenly host to pro-Palestine encampments from late April to mid-May. The protests quickly spread nationwide after Columbia students erected their first “Gaza Solidarity encampment” on April 18. By the end of April, 86 encampments had already formed. The first Texas encampment was at Rice University on April 24. Four more encampments at the University of Texas at Austin, UT Dallas, UT Arlington and the University of Houston soon followed. With support from state leadership, university officials at UT Austin and UT Dallas called in state troopers and police to arrest more than 100 students while dismantling the encampments.

Students used speakers and megaphones to amplify their chants during those encampments while using drums to keep a consistent beat. Students set up tents on campus overnight. Students criticized public officials and university leadership, invited outside speakers and activists to their demonstration, and organized all of this during the last two weeks of the spring 2024 semester. SB 2972 prohibits all of these expressive activities.

Sameeha Rizvi, a civic engagement organizer at the Texas Council on American-Islamic Relations, said that SB 2972 tore apart the protections established by SB 18 while directly targeting student activists' “fundamental right to free speech.”

“SB 2972 directly contradicts the Legislature’s own commitment to campus free speech,” Rizvi said. “The restrictions on expressive activities effectively silence students during critical periods.”

Rizvi said that the combination of the school-day sound amplification restriction and the ban during the night made it impossible for students and employees to express themselves.

“These restrictions create an impossible situation: protest silently during the daytime or don’t protest at all after hours,” Rizvi said. “Whether students are campaigning for human rights or religious freedom, all speech across the political spectrum will be constrained.”

UT law student Gwynn Marotta said that growing up, she had always been told that the right to protest and demonstrate was one of the core tenets of the U.S. Marotta noted that when the government sought to impose itself over this right and restrict it, that decision should be met with skepticism. Marotta said that the hyperfocus on restricting student activity entirely missed the issue of what happened in spring 2024.

“These restrictions create an impossible situation: protest silently during the daytime or don’t protest at all after hours.” - Sameeha Rizvi, Texas CAIR

tweet this

“I remember last spring watching as the University of Texas sent armed police against students who were peacefully protesting,” Marotta said.”This was haunting to see happen. My mom went to Kent State shortly after the massacre. I remember her calling me, terrified and concerned. Not because of the protests, which I was raised to respect and revere, but instead because of the masked and armed police marching through campus. Thankfully, no one was killed, but I saw my friends beaten and pepper-sprayed for daring to exercise their right to protest. It isn’t hard to imagine how that could have gone worse.” (Four students at Kent State in Ohio were shot to death by National Guard troops during an anti-war protest in May 1970, during the last weeks of their spring semester.)

UT Law spring 2025 graduate Brianna Terrel said that she, as a Jewish person, appreciated efforts to counter anti-semitism. Still, SB 2972 was deeply misguided in its approach by reversing speech protections in the state. Terrel said that without encampments, the successful international campaign against apartheid South Africa’s racist government could not have happened, and that this bill was limiting the fundamental tools of protest people have used for decades. Terrel said that instead of helping students or institutions, the bill created a stronger wedge between the public and their “public” schools.

“This bill walks back on that [free speech] mandate and strips the publicity of public-facing institutions in light of protests during spring [2024] ...,” Terrel said. “UT is the flagship institution of the state, it serves countless Texans through its research, medical care, arts and unforgettably the joy of Longhorns football. It would be a shame for this institution, a central component of the fabric of the city of Austin and this state, to disregard the free speech of the community it serves, the public.”

Free Speech Concerns

Hemachander Rubeshkumar, chair of UTD’s student government’s student affairs committee, said that a wide variety of events held by the student government involved students expressing themselves. Rubeshkumar said that things like Final Scream happened every year at night during the last two weeks of the semester to allow students to express themselves and de-stress during finals. Rubeshkumar said that UTD favorites like midnight breakfast, which consistently has turnout in the high hundreds, would likely be on the chopping block since students are making noise, talking and engaging in typical free speech activity. Still, he worries that such activities will be illegal in September.

“[SB 2972] would significantly dampen social life on campus as students already have several other things to balance in their day-to-day lives,” Rubeshkumar said. “Organizing events to bring people together is rewarding, but it requires significant effort, especially on a campus with a lot of commuting students. This would make students much more wary of doing any type of activity on campus. Even the idea of a 'curfew,' that alone should show how ridiculous this is. College students have terrible sleep schedules, and now you want the deans to nanny them so that they sleep on time?”

Rubeshkumar said it was typically best to avoid giving university administrators the ability to limit free speech on campus. In his two whole years at UTD, Rubeshkumar said that he has seen the Spirit Rocks, a 20-year-old public forum, removed; a peaceful encampment violently crushed within hours of its formation; and the student newspaper dismantled.

“These are unacceptable actions of repression by our college administration,” Rubeshkumar said. “We have seen time and time again throughout history, college students leading movements to end injustices and progress society, while being met by disproportionate force and repression. Right now, we have President Trump attempting to deport students who speak out against his policies, and our Texas legislators are working on how to further suppress student speech instead of addressing this issue. Freedom of expression is the first right in the Bill of Rights and is a core part of the American identity. Do not let them take it from you.”

Noor Saleh, a UT law student, said that what concerned her the most was the bill's vague language. Saleh said that terms like “reasonable restrictions,” “expressive activity” and “defamation” opened the door for a broad range of speech restrictions on more than just student protests. Saleh said that administrators could use it to limit student journalism critical of campus leadership or the state government; it could be used to chill student expression outside and inside the classroom; and it could be used to target things seen entirely as nonpolitical, like attending a tailgate.

“When we see [SB 2972] lack specific definitions, what we can expect is things like tailgate tents no longer being allowed on UT’s campus since tents are just fully banned, which is incredibly disheartening for those of us who like to go tailgating before our football games,” Saleh said. “This bill, while perhaps well-intentioned, opens the door to a troubling level of overregulation.”

"This bill requires universities to adopt unconstitutional policies.” - Tyler Coward, FIRE

tweet this

Rizvi said that student events like vigils would also be swept away with this legislation due to the 10 p.m. to 8 a.m. ban.

“Banning nighttime demonstrations would essentially prohibit peaceful campus vigils held in remembrance of military service members, school shooting victims, victims of genocides and other events that are often solemn, unifying, and community-driven,” Rizvi said.

Tyler Coward, lead counsel for government affairs at the Foundation of Individual Rights and Expression, said that FIRE had been a major supporter of SB 18 when it was first proposed because so many Texas schools kept unconstitutionally limiting the First Amendment rights of their students, and something like SB 18 was a significant step forward.

“Universities routinely adopted policies or practices that resulted in censorship of students or faculty,” Coward said. “This bill is a retreat from that very good bill that was passed in 2019. And in fact, this bill requires universities to adopt unconstitutional policies.”

With a deadline of Sept. 1, Texas’ public schools have not officially announced changes to their policies. A spokesperson for UTD did not agree to an interview or answer questions about policy changes, but UTD did provide the following statement: “We will follow the law.”

Caitlin Vogus, a First Amendment lawyer and senior advisor to the Freedom of the Press Foundation, wrote an op-ed in the Houston Chronicle arguing that this would not be an easy sentiment to follow since the state law directly contradicts the U.S. Constitution, also known as the supreme law of the land.

“Almost the entire bill infringes on constitutionally protected free speech rights,” Vogus wrote. “The First Amendment protects freedom of expression, and this bill restricts expressive activities at night — defined to specifically include First Amendment expression. Unconstitutionality doesn’t get any more clear-cut.”

Coward said SB 2972 introduces new ways to shut down expression and open debate on campus. Since the new law will require universities to shut down events if they cause a material or substantial disruption, activists would, in effect, be given a heckler's veto for any event or speaker they didn’t want to see on campus.

Coward said that while the law might be intended to equip universities with the tools to react to disruptive conduct when it falls outside the scope of the First Amendment, this bill ultimately fails to meet its goal in every category.

“This bill was sloppily drafted and includes just blatantly unconstitutional provisions,” Coward said. “Governor Abbott should have vetoed this bill and asked for them to work on something new, during a special session, if he really needed it. It's a shame that he signed into law a clearly unconstitutional bill.”