Wednesday, December 4, 2019
Kimberly Hale Director of Technology (2019 – 2020)
Earlier this year, the 86th Texas Legislature passed Senate Bill 18, also known as the “Campus Free Speech Bill.”¹The main purpose of the bill, which became effective September 1, 2019, is to bolster free speech protections on campuses of public universities in Texas.²Although campus free speech has historically sparked debate across the country, rather than address partisan views, this article will instead break down the legal jargon used throughout the Campus Free Speech Bill and explain what the law means for the state of free speech on public universities in Texas.
How does the Campus Free Speech Bill affect public universities? The Campus Free Speech Bill affects Texas’s public universities by increasing free speech protections for any person engaging in expressive activities on campus.³ “Expressive activities” include protesting, giving (and listening to) speeches, distributing flyers and pamphlets, carrying signs, and circulating petitions.⁴ The law designates the common outdoor areas of university campuses as traditional public forums, which are areas that are typically open to the public for political speech and debate, for example, a public park, street, or sidewalk.⁵ The new designation will be an adjustment because, prior to the Campus Free Speech Bill, universities were generally designated as limited public forums, which meant that universities could limit the subject matter or content of the speech (e.g., all political or religious speech), as well as the speaker (e.g., all non-university affiliated members). Now, however, the Campus Free Speech Bill permits any person—not only university-affiliated members—to freely engage in expressive activities on campus without the need to first ask the university for permission to do so.⁶
The law also aims to expand protections for student groups and faculty members who wish to invite outside guests to speak on campus. For instance, when determining whether to approve a guest speaker or what fees to charge for use of the campus facilities, universities may consider only “content-neutral and viewpoint-neutral criteria related to the needs of the event” and “may not consider any anticipated controversy,” such as protests, in response to the event or the guest speaker’s viewpoint.⁷ Universities can, however, consider “any anticipated need for campus security” in making such decisions.⁸
What isn’t perfectly clear about the text of the Campus Free Speech Bill? a. What is considered a “common outdoor area”? The Campus Free Speech Bill designates the “common outdoor areas” of university campuses as traditional public forums;⁹ but, the term, “common outdoor area” is not defined by the bill, the Texas Education Code, or case law. Without a definition, is it reasonable to believe that all outdoor areas of a university’s campus are “common outdoor areas” where any person can freely engage in expressive activates? Unfortunately, a clear answer does not yet exist.
In the absence of a specific definition to provide guidance on the term, it can be helpful to review the policies created by the universities themselves to gain a better understanding of the meaning of “common outdoor area.” For example, the University of Texas at Austin defines “common outdoor area” as “outdoor space that is not used for dedicated University business or an event, an educational function, or a research function on either a permanent or temporary basis.”¹⁰ The policy further states that the term “does not include the outside surfaces of a University building . . . a University structure, spaces dedicated to temporary outdoor banners, spaces dedicated to temporary outdoor exhibits, or any other space within the University’s limited public forum.”¹¹ For another take on a similar term, the University of North Texas defines “campus grounds” as “outdoor areas owned, leased or controlled by the University that are common and accessible to all students, employees, and visitors, such as sidewalks [and] park-like areas.”¹²
Taking guidance from university policies, one can reasonably conclude that certain outdoor areas, such as areas directly outside the university building doors, student-created gardens, outdoor projects, areas dedicated to displaying art, such as sculptures of local artists, etc., do not fall within the meaning of “common outdoor areas” for purposes of the Campus Free Speech Bill. This means that the increased protections on free speech would not extend to certain outdoor areas, and therefore, universities could restrict speech in those areas.
b. What happens if someone interferes with another person’s right to freely express their ideas on campus? The Campus Free Speech Bill requires universities to “establish disciplinary sanctions for students, student organizations, or faculty who unduly interferewith the expressive activities of others on campus.”¹³ However, the law does not define “unduly interfere” in its text, and as a result, this ambiguity could lead to potential lawsuits over the meaning of the term. For instance, if a student purposefully damages a sign used by a protestor on campus, or a student continuously blows a fog horn during a campus debate, making it impossible to hear the speaker, does such conduct fall within the meaning of “unduly interfere”? Until the law defines this ambiguous term, it will be up to the universities to interpret the meaning of the text and adopt disciplinary policies accordingly.
Does the Campus Free Speech Bill leave universities with no ability to restrict speech? No. The law protects any person engaging in expressive activities on campus, but only so long as the person’s conduct is lawful and does not significantly disrupt the functioning of the university.¹⁴ Therefore, it follows that a university would not be required to allow an individual to continue speaking into a megaphone if the individual can be heard inside the classroom and is disrupting a class lecture. Furthermore, universities can “impose reasonable restrictions on the time, place, and manner of expressive activities” on campus.¹⁵ For example, universities can place reasonable limits on:
protesting after midnight (time);
blocking the sidewalk to distribute flyers (place); and
using bullhorns during a demonstration (manner).
However, a university could not restrict a group from protesting, distributing flyers, or using bullhorns during a demonstration on campus if the restriction is based solely on the content of the speech or the viewpoint expressed by the group.¹⁶ Likewise, as referenced above, the Campus Free Speech Bill does not prohibit universities from restricting expressive conduct that is unlawful (i.e., unprotected speech).¹⁷ Unprotected speech includes defamation (false statements of fact about a person), incitement (intentional speech that is likely to provoke a crowd to immediately carry out violent and unlawful action), fighting words (intimidating speech likely to provoke the average person to react violently), and true threats (serious threats of physical violence targeted at a particular individual or group of individuals).¹⁸Additionally, commercial speech (e.g., a credit card vendor soliciting students on campus to sign up for a new credit card) is generally considered unprotected speech and is similarly not considered an “expressive activity” under the Campus Free Speech Bill.¹⁹Therefore, universities can still restrict certain types of speech that are not protected under the Campus free Speech Bill.
What does the law mean for campus free speech in the Lone Star State? While university campuses in Texas have traditionally been places for students and faculty to gather and share different perspectives and experiences, the law furthers this notion by extending free speech protections to members of the public who wish to express their views on campus. The law has been effective for only a few months; therefore, it may be too soon to predict the outcome of the Campus Free Speech Bill and its impact not only on students, faculty, and staff of the university, but also on members of the public. With that, however, one thing remains clear: it is highly unlikely that university students will ever protest free pizza.
Sources: ¹ Act of June 10, 2019, 86th Leg., R.S., ch. 568, §2, 2019 Tex. Sess. Law Serv. (codified at Tex. Educ. Code §51.9315). Available: https://capitol.texas.gov/tlodocs/86R/billtext/pdf/SB00018F.pdf#navpanes=0. ² Tex. Educ. Code § 51.9315. ³ Tex. Educ. Code Ann. § 51.9315(c)(2). ⁴ Tex. Educ. Code Ann. § 51.9315(a)(2). ⁵ Tex. Educ. Code Ann. § 51.9315(c)(1). ⁶ Tex. Educ. Code Ann. § 51.9315(c)(2). ⁷ Tex. Educ. Code Ann. § 51.9315(h). ⁸ Tex. Educ. Code Ann. § 51.9315(h)(1)(b). ⁹ Tex. Educ. Code Ann. § 51.9315(c)(1). ¹⁰ Chapter 13. Speech, Expression, and Assembly, Subchapter 13–100. Governing Principles, The University of Texas at Austin, https://catalog.utexas.edu/general-information/appendices/appendix-c/speech-expression-and-assembly/. ¹¹ Id. ¹² 07.006 Free Speech and Public Assembly on Campus Grounds, Policies of the University of North Texas, Chapter-07, Student Affairs (revised 8/28/2019), https://policy.unt.edu/sites/default/files/07.006_FreeSpeech.Pub8_.2019.pdf. ¹³ Tex. Educ. Code Ann. § 51.9315(f)(2). ¹⁴ Tex. Educ. Code Ann. § 51.9315(c)(2). ¹⁵ Tex. Educ. Code Ann. § 51.9315(d). ¹⁶ Tex. Educ. Code Ann. § 51.9315(d)(2). ¹⁷ Tex. Educ. Code Ann. § 51.9315(c)(2)(A). ¹⁸ Victoria L. Killion, The First Amendment: Categories of Speech, Congressional Research Service (updated January 16, 2019), https://fas.org/sgp/crs/misc/IF11072.pdf. ¹⁹ Tex. Educ. Code Ann. § 51.9315(a)(2).