The campus protest law actually directs public colleges and universities to implement a version of free-speech zones and adopt sweeping limitations on protests. Encampments? Banned. Megaphones or speakers during “class hours”? Forbidden — if anyone claims your “expressive activity” is one that “intimidates others” or “interferes” with an employee’s duties. Even wearing a mask during a protest — something many do for safety — could land a student or employee a disciplinary hearing resulting in “sanctions.” And any expressive activity between 10 p.m. and 8 a.m. is off-limits altogether.Though each restriction raises potential First Amendment issues, this last one is perhaps the most concerning. State law defines “expressive activity” as “any speech or expressive conduct protected by the First Amendment” — speeches, writing, art, symbolic actions, even just talking to your friends. It’s problematic enough that legislators seek to prohibit nighttime or early-morning protest activity, but the language could affect late-night art events, student journalists, and even assigned research, course or thesis work for students or faculty in the habit of burning the midnight oil.
Thus, Texas can't argue that it's not intending to infringe upon protected First Amendment activity; it is doing so by its own definition. In addition to being strictly forbidden by the Constitution, this is ridiculously broad: apolitical events like concerts for college-aged people are often held until after 10 PM, and indeed may not start until midnight. I no longer wish to be out after ten, but it's not at all unusual for young people to enjoy it.
Still, the First Amendment isn't chiefly about artistic entertainment events like concerts. It's especially about political speech. I can see the "no megaphones when it will make it impossible to conduct classes" rule, as the teachers' and students' work in class is also protected free expression (and something the students are paying a pretty penny to receive). I can see the rules against intimidating students or professors or interfering with their ability to do the thing that the institution exists to do. Banning First Amendment protected activity outright during hours when classes aren't even in session cannot survive any constitutional review.
12 comments:
It sounds as if the legislature tried a "throw everything at the wall and see what sticks." Some limits, such as no encampments, no bullhorns during class hours, I firmly support. Other parts are worded far too loosely, and as you point out, could include concerts, wrap-parties after theater productions, and other things.
I'm sure it will be challenged. I hope the common sense and safety elements remain in place, and the other parts are clarified or removed. (And it gives me fodder for the civil liberties chapters in government class.)
LittleRed1
As is often the case, it's useful to go to the actual source, and that's especially the case regarding claims by tabloid rags like the WaPo. The WaPo article is, indeed, behind a paywall, so I did some searching. Lawyers|Guns|Money (not nearly as right of center as its name might imply) quoted extensively from the WaPo article, and it contained a link to the actual Texas law that was passed: SB 2972.
Last things first: the text of the law closes with this:
Nothing in this section [Section 2; the last two Sections are a couple of sentences identifying the effective date of the law] may be construed to limit or infringe on a person's right to freedom of speech or expression protected by the First Amendment to the United States Constitution or by Section 8, Article I, Texas Constitution.
Regarding the tabloid's hysterical beefs, "Expressive activities" is defined at the outset solely to avoid having to keep enumerating them throughout the body. That definition names all the things the Free Speech clauses of the two Constitutions identify along with all the things the Supreme Court has further defined as free speech/expressive activities.
The money part of the law, Section 2, then enumerates the items cried about by the tabloid, but solely within the context of not interfering with the expressive activities of others, including--not limited to--the expressive activity of the institution and its students and teachers to conduct class, attend class, and study/study for exams.
Section 2(d) explicitly limits any restrictions on expressive activity to be
(1) are narrowly tailored to serve a significant institutional interest;
(2) employ clear, published, content-neutral, and viewpoint-neutral criteria;
(3) provide for ample alternative means of expression;
and
(4) allow members of the university community to assemble or distribute written material without a permit or other permission from the institution.
All the law does is move to prevent some from attacking and denying access to free speech of others. Concerts, loud parties, etc are well outside the limits of this law and are unaffected.
Eric Hines
I grant the point that it's good to go back to original sources. I looked it over, and it seems to me that Texas is on reasonable ground in trying to define some things that don't qualify as 'expressive conduct' -- commercial speech, immediate threats, etc.
Once you're done with that, though, the rest is admittedly First Amendment protected free speech. That's it; that's all.
reasonable ground in trying to define some things that don't qualify as 'expressive conduct' -- commercial speech, immediate threats, etc
Only things included in that etc., is activities that block others from exercising their expressive conduct. Texas is on solid ground over all.
That's it; that's all.
Eric Hines
Maybe. Maybe not. I don't grant any limits on the First or the Second Amendments.
I don't grant any limits on the First....
So if I protest your blog to the point of blocking you from posting at all, or just protest by shutting down your blog, you'd say that's just my entirely legitimate expressive conduct?
Eric Hines
If you do that, you'll probably just be keeping me from wasting my time. I'm surprised Google hasn't throttled us yet.
No limits on the First; no limits on the Second.
The root of the problem is contained in "Your speech is violence, my violence is speech". From Eric's description it sure sounds like this law's intent is cabining university officials so they can no longer call assault, battery, theft, or rioting 'speech'.
I welcome legal clarity about "speech" whose point is neither expression nor persuasion, but about volume and making other activity impossible. No one has the right to keep unwilling audiences awake with megaphones all night, or scream nonstop during class until people run out of the room with hands over their ears, but they're welcome to discuss politics into the wee hours to anyone who will listen. Similarly, "free speech" doesn't include standing in a clot blocking the door to an abortion clinic shrieking, but I fail to see what's wrong with silently praying across the street, or even picketing at a reasonable distance. I would also welcome politically neutral limits on these tactics.
I dunno. I think the First protects your right to speak, but it does not give you the right to force people to listen. When someone's "speech" is delivered in such a way that it forces people to listen, it violates their rights not to be trod upon. It is, in fact, tyranny and only pretending to be a right.
We recognize other time and place restrictions on our rights. E.g., in terms of natural rights (not US law obviously) we have the right to be armed pretty much everywhere. This right also implies the right to train to become proficient and maintain proficiency. However, that doesn't give us the right to go to the public library, tape targets to the exterior wall, and practice target shooting there.
The point of free speech is that we have the right to get our ideas and opinions out there in the public square, not that we have any right to force people to listen. There are a million venues to do that. We can rent a billboard, buy TV / radio / cable / internet ads, march down main street with signs, publish a book, write our opinions all over the internet, engage in conversation at the bar, etc. There's no great right being violated by keeping people from disrupting their fellow citizens' lives.
When someone's "speech" is delivered in such a way that it forces people to listen, it violates their rights not to be trod upon.
It's broader than that. The absolutist position of no restrictions on [speech] means government cannot/does not protect everyone engaged in "expressive activities." Those who are loudest are free to prevent others from exercising their own expressive activities.
Answering bad speech with good speech is no longer possible; only the loudest thugs can speak. That's not freedom; it's despotic tyranny of the physically strong and the subjugation, if not elimination, of the physically weak.
Eric Hines
I personally think anyone who points a megaphone at you deserves a punch in the teeth, so I understand the point. The question for me isn't about the reasonableness of the position, but granting government the power to be the arbiter. It's not that there shouldn't be any restrictions on speech, social or otherwise; it's that the First Amendment bans the government from being that restriction. I support the absolutist position because I regard government as a uniquely dangerous threat.
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