TEXAS, USA — Editor's Note: The abstract has been slightly amended to account for formatting constraints.
This article originally appeared in The Texas Tribune. Click here to read it.
In response to the continued conflict in Israel and Palestine, student demonstrations in solidarity with people in Palestine have drawn scrutiny across the country and in Texas.
In late March, Gov. Greg Abbott ordered public universities to revise their free speech policies and singled out some pro-Palestine student groups, saying they should be subject to discipline. The order told officials for Texas university systems to report back free speech policy changes within 90 days.
Still, students and organizations have continued to announce pro-Palestine demonstrations, including at the University of Texas at Austin and the University of Texas at Dallas. On Wednesday, multiple people were arrested on the UT-Austin campus during one such demonstration.
Gov. Greg Abbott cheered the arrests and called for the students to be expelled.
Free speech experts and advocates say students can generally peacefully protest, regardless of their viewpoint. However, colleges and authorities may still enforce some restrictions and criminal laws to maintain peace and order.
When is protesting considered free speech?
The right to protest is protected by the U.S. and Texas constitutions, according to the American Civil Liberties Union of Texas. Freedom of speech and assembly means people can engage in symbolic actions and can arrange peaceful marches and protests on certain public lands.
But these rights are not without limitations. Government entities and colleges can enact “reasonable time, place, and manner” restrictions or regulations as long as they are applied neutrally and don’t discriminate against particular groups or viewpoints. Some colleges have tried to limit protests to smaller, designated “free speech zones,” but the law has often backed up students peacefully protesting outdoors in open, public areas of campus, according to the Foundation for Individual Rights and Expression.
Protections for free speech are broad and can include offensive viewpoints, but they do not extend to the following:
- True threats to harm another person
- Inciting of imminent violence or destruction of public property
- Unlawful conduct, including civil disobedience like sit-ins or traffic blockades
These are narrow categories of unprotected speech that require an analysis of the facts in each specific case, said Will Creeley, the legal director for FIRE. But he noted that “violence is never protected, no matter who is committing the violence or however righteous one might think the violence is. It's always a bad idea. It undermines the effectiveness of protests and it is against the law.”
Colleges may also have an obligation to intervene when speech violates federal anti-discrimination law, which prohibits discrimination based on race, color, national origin, or perceived religious or ethnic identity, but it takes a great deal to meet that requirement, Creeley said.
“The bar for punishing discriminatory harassment requires that the harassment in question be so severe, pervasive and objectively offensive, that it effectively denies the victim access to an educational opportunity or benefit,” he said.
Many private colleges also promise their students the right to free speech. FIRE keeps a database of free speech policies at 486 schools.
Is a permit necessary to protest?
Individuals themselves don’t usually need a permit to exercise their First Amendment rights, but entities may require one for unusually large protests or parades, in which case “reasonable time, place, and manner” restrictions may apply.
Courts have historically indicated permitting deadlines can’t be unreasonable and burden First Amendment rights, limiting permit request deadlines to a certain number of days before an event, according to the ACLU. Entities may charge fees but only to cover the administrative costs of processing an application and issuing a permit. Permit requirements and fees must be neutral without discriminating against certain viewpoints.
What are the risks of protesting?
Students may face violations of both criminal law or a university's student conduct code.
“On many of the campuses, what's happening is the protesters are being arrested for violation of state or local statutes or ordinances and not really for violations of campus speech codes,” said Tom Leatherbury, director of the First Amendment Clinic at the SMU Dedman School of Law. “So you also have state universities relying on police to enforce generally applicable criminal laws to protesters, even though the protester’s activities may be otherwise protected.”
Possible violations in Texas may be deemed “disorderly conduct” or could include:
Many of these possible violations are considered misdemeanors under Texas law, ranging in punishment from a fine of $500 or less for class C misdemeanors to up to a year in jail and/or a fine of $4,000 for class A misdemeanors.
In some cases, authorities or plaintiffs have pursued action against protest organizers not directly involved in unlawful conduct when such conduct has developed in a protest, Leatherbury said.
“Stay alert, and be aware of situations developing around you, and make sure that you don't do anything that can be construed as violent or threatening,” Leatherbury said.
The U.S. Supreme Court previously stated that negligence is not sufficient basis for imposing liability on political expression and association, but it recently declined to take up a case in which an appeals court with jurisdiction over Texas decided otherwise. Other lower courts have sided with protestors.
Students and people who are not U.S. citizens may face a greater risk in protesting. The Patriot Act, a federal law passed in the aftermath of the 9/11 terrorist attacks, allows for surveillance and investigation related to a person’s First Amendment activities, and immigrants who are not citizens or permanent residents may face harsher penalties if their actions are deemed “domestic terrorism,” according to the ACLU. Here are some resources for immigrants who may want to protest.
Employees should also be aware that they may be subject to workplace rules, including in regards to unexcused absences, and “at-will” employment policies that allow employers to fire employees easily.
What happens if I'm confronted by authorities?
Police have at times ordered people gathered for a protest to disperse. The ACLU says shutting down a protest through a dispersal order should be a last resort only exercised by police if there is a clear and present danger of riot, disorder, traffic interference or an immediate threat to public safety.
A dispersal order must provide protestors a reasonable opportunity to comply, including a clear and detailed notice with enough time and an unobstructed path to leave.
But people who don’t follow orders to disperse by authorities may face arrest, even if they are otherwise protesting peacefully, Creeley said.
“You don't have a First Amendment right to violate lawful orders. If you engage in civil disobedience, part of the power of your message comes from your willingness to accept the consequences of breaking the law,” he said.
What are protestors’ rights if they’re detained or arrested?
Police may detain people – or briefly stop people for questioning – if they have reasonable suspicion to investigate for criminal activity. If they believe they have sufficient evidence or probable cause, they may make an arrest and take someone into custody.
The ACLU recommends people stopped by police while protesting stay calm, keep their hands visible and say they are not disturbing anyone else’s activities and that you are protected by the First Amendment. However, the ACLU suggests protestors avoid arguing because anything said can be used against you.
People being questioned by police have the right to remain silent, but may have to say they are exercising that right and give their name, according to the ACLU.
People can ask the police if they can leave. If they say yes, calmly walk away. Someone detained or under arrest can tell the police they would like to see a lawyer immediately. Police may search a person if they believe the person is concealing a weapon. People should not resist or touch the officer conducting the search, however, the ACLU recommends that people let police know that they do not consent to other searches.
The ACLU recommends that people do not protest or resist on the scene if they think their rights are being violated. Note that resisting arrest, evading arrest or detention and hindering someone else’s arrest are all crimes.
For people who think they are wrongly arrested or detained, the ACLU recommends writing down any identifying information like officers’ names, badge numbers and patrol car numbers. After the event, people can submit a written complaint to the police or write a complaint to the ACLU.
Members of the public are allowed to record video openly and freely in public spaces, which may help serve as evidence if you are arrested or detained. Police may not confiscate or demand to view your video or photographs without a warrant, per the ACLU, but they may order people to stop activities interfering with law enforcement operations.
Some states require that all parties give consent for a conversation to be recorded when privacy can be expected, but Texas does not.
Are there free speech resources for students and Texans?
- FIRE has guides for students participating in protests on college campuses and also offers to connect students with resources and legal assistance.
- The ACLU of Texas has guidance on protestors’ rights and interactions with police. The organization offers assistance in legal cases related to civil liberties and civil rights issues.
- The Texas State Law Library has a guide to protest rights in Texas, including information on interactions with police and legal help for protestors.
- PEN America has a list of various organizations that work on college free speech issues.
