Senate hearing at Texas State to delve into campus free speech issues

2:36 p.m Tuesday, Jan. 30, 2018 Texas News & Politics
Jay Janner
Anti-Trump protester Patricia Romo, left, 22, argues with Trump supporter Cody Williams, 18, at an anti-Trump demonstration at Texas State University in San Marcos on Nov. 10, 2016. JAY JANNER / AMERICAN-STATESMAN

When a legislative panel meets at Texas State University in San Marcos on Wednesday to consider freedom of speech on college campuses, it will be wading into a topic fraught with legal, political and safety overtones.

At first blush, the two-sentence charge to the Senate State Affairs Committee from Lt. Gov. Dan Patrick, a Republican, seems straightforward enough: “Ascertain any restrictions on Freedom of Speech rights that Texas students face in expressing their views on campus along with freedoms of the press, religion, and assembly. Recommend policy changes that protect First Amendment rights and enhance the free speech environment on campus.”

The public hearing comes after events on campuses across the nation that illustrate the complexity of free speech issues, with Texas a case in point.

In November, University of Texas police ousted demonstrators wearing masks and carrying torches who gathered on the steps of the South Mall. In May, a commencement speech by Republican Sen. John Cornyn was canceled at Texas Southern University in Houston after students protested, and in October the historically black college halted GOP state Rep. Briscoe Cain’s speech after student protesters showed up. In August, Texas A&M University — in a move that legal scholars said rested on thin ice — canceled a white nationalist rally that had been booked months earlier, citing safety concerns.

Texas State has had its share of controversy as well. An opinion column in the student newspaper in November ran under the headline “Your DNA is an abomination” — a lyric by rapper-songwriter Kendrick Lamar — and railed against whiteness. The paper apologized and the school’s president, Denise Trauth, said she was “deeply troubled” by the article. The incident came toward the end of a semester that saw white supremacist flyers posted on campus by outsiders on numerous occasions.

UT draws line at ‘harassment’

It’s axiomatic that popular speech doesn’t need much protection, if any. The First Amendment also exists to protect controversial, even repugnant, speech. But there are limits. Court rulings allow schools to regulate the time, manner and place of public speech.

The UT campus, for example, is not open to protests staged by groups unaffiliated with the school like the torch-bearing demonstrators in November. Those protesters, whom officials apparently considered white supremacists, also violated a rule banning open flames and masks that conceal identity to hinder law enforcement.

“The actions of white supremacists and other hate groups are completely anathema to UT’s values, and I abhor what they represent,” UT President Gregory L. Fenves said at the time.

UT spokesman J.B. Bird said the entire campus is a free speech zone “with the exception of dedicated business and teaching areas.”

The university’s rules on speech and assembly ban obscene materials, defamation, incitement to violate the law and a somewhat squishy category labeled “verbal harassment” that can include threats, hostile or offensive speech directed at one or more individuals and insults based on such factors as race, national origin or sexual orientation. Speakers using amplified sound are restricted to the university’s West Mall, and hand-held signs made of rigid materials like wood or metal are banned for safety reasons.

“We’ve initiated a review of our policies in the last few months,” said Dan Sharphorn, vice chancellor and general counsel at the UT System, which oversees the Austin flagship and 13 other campuses. “We’re taking it seriously. I think we have good and fair legal policies, but I think it’s a good idea to take a look at it.”

Should hecklers be punished?

Texas State’s rules allow any person to distribute literature outdoors on its grounds, but posting of flyers is restricted to boards and kiosks for use only by students, faculty and staff. The Anti-Defamation League, which tracks distribution of white supremacist materials on college campuses nationwide, counted 61 incidents in Texas since September 2016 of such flyers, posters or banners, with 11 of them at Texas State, more than at any other school. UT had 10 incidents.

The vast majority of the postings are by outside activists with far-right groups, as opposed to university-affiliated people, said Carla Hill, a senior investigative researcher with the ADL’s Center on Extremism. Such groups, which have become more active during the candidacy and presidency of Donald Trump, include American Vanguard (later renamed Vanguard America), Patriot Front and Identity Evropa, she said.

Some conservative Republicans are expected to push for an expansion of campus free speech rights when the Legislature meets next year.

“In the ’60s, it was those more to the left of center who were fighting for freedom of speech on campus,” said Thomas Lindsay, director of the Texas Public Policy Foundation’s Center for Higher Education.

Lindsay would like to see state legislation calling for the suspension of a student or employee after the second time he or she violates the free speech rights of others — an effort to cut down on the so-called heckler’s veto.

A campus free speech measure passed the Texas Senate last year with just one Democrat’s support but never got a hearing in the House. Sen. Dawn Buckingham, R-Lakeway, said in her author’s statement regarding Senate Bill 1151 that campus speech codes “substantially limiting First Amendment rights are common and becoming more prevalent.”

Her measure would have barred schools from designating particular areas as free speech zones, but would have permitted “reasonable restrictions” on the time, place and manner of public speech, provided that the restrictions are narrowly tailored and content-neutral.

Democratic state senators, including Kirk Watson of Austin and Royce West of Dallas, argued that the U.S. and Texas constitutions, along with court rulings, already protect free speech on campus. Sen. Kel Seliger, a Republican from Amarillo who chairs the Higher Education Committee, made the same point during his panel’s hearing on Buckingham’s bill.

And when it came time for the full Senate to vote, Seliger was listed as present but not voting. That might explain why Patrick, the lieutenant governor and the Senate’s presiding officer, assigned the State Affairs Committee rather than Seliger’s panel to explore campus free speech issues and make recommendations.