‘The First Amendment does not have a bedtime of 10 p.m.’

A federal judge in Austin blocked the UT System from enforcing key parts of Senate Bill 2972 today, a new state law that restricts student speech and protests on campus. The preliminary injunction is a significant step towards protecting the First Amendment rights of Texas students and a setback in the Texas legislature’s crackdown on university expression and student protest. 

SB 2972, which took effect Sept. 1 this year, limits expressive activities — defined as all non-commercial activity protected by the First Amendment — on college campuses in multiple unprecedented ways. This includes a ban on expressive activities between 10 p.m. and 8 a.m. and on multiple activities, such as bringing a guest speaker to campus, using a drum or using a sound-amplifying device during the last two weeks of a semester. The law requires that all public universities update their campus speech and expression policies by Sept. 1 this year to comply with the new restrictions.

The court’s injunction, however, prevents the UT System and its constituent schools from enforcing the invited speaker ban, the amplified sound ban, the drum ban and the overnight expression ban that the law dictates on their campuses.

In his 52-page ruling, Senior U.S. District Judge David Alan Ezra found that the plaintiffs challenging the law, represented by the Foundation for Individual Rights and Expression, are likely to succeed in proving the law and its accompanying university policies violate the First Amendment. The defendant’s lawyers argued the restrictions imposed in accordance with SB 2972 are meant to maintain order on college campuses in the wake of spring 2024’s student protests, per the stated intent of the law’s author and supporters in the legislature. Ezra wrote in his ruling that the law appears to be “content-based” and raises “significant First Amendment issues” by giving university administrators the discretionary ability to determine what is and is not “disruptive.” 

“The First Amendment does not have a bedtime of 10:00 p.m,” Ezra wrote. 

FIRE challenged the law and the accompanying policy created at UT Austin and UTD to comply with it on the grounds that it is a major threat to students’ First Amendment rights. 

“Today’s ruling is a victory not only for our plaintiffs, but all of those who express themselves on college campuses across Texas,” FIRE’s senior supervising attorney JT Morris said. “The First Amendment protects their freedom of speech on campus, every hour of the day, every week of the year.”

Today’s ruling is a victory not only for our plaintiffs, but all of those who express themselves on college campuses across Texas.

— JT Morris, FIRE senior supervising attorney

Ezra wrote that it can’t be in the public interest for universities to enforce a regulation that violates federal law in the name of adhering to state law, and that universities being unable to enforce SB 2972 does not harm them. Additionally, the Court found the public way Gov. Greg Abbott and state lawmakers — like SB 2972 author Sen. Brandon Creighton — responded to student protests in the past two years is unquestionably intertwined with the reasoning behind creating this “likely unconstitutional” law.

“The strong reaction indicates that the statute was because of disagreement with the message the speech conveys. As such, the statue is content-based both on its face and by looking to the purpose and justification for the law,” Ezra wrote.

The strong reaction indicates that the statute was because of disagreement with the message the speech conveys.

— David Alan Ezra, Senior U.S. District Judge

The law’s opponents, including the American Civil Liberties Union, the Council on American Islamic Relations and Texan legal experts have criticized SB 2972 for its overly broad, chilling and unconstitutional effects since it was first proposed as legislation. 

“Texas lawmakers trying to muzzle campus protests have just passed one of the most ridiculous anti-speech laws in the country,” First Amendment lawyer Caitlin Vogus and UT law student Jimena Pinzon said in a Houston Chronicle op-ed earlier this year. “Senate Bill 2972 would ban speech at night — from study groups to newspaper reporting — at public universities in the state.” 

Senate Bill 2972 would ban speech at night — from study groups to newspaper reporting — at public universities in the state.

— Caitlin Vogus, First Amendment lawyer, and Jimena Pinzon, UT law student

The ruling highlights the ongoing legal and political struggle over free speech on college campuses, an issue the state and federal government have become increasingly involved with this past year, as seen with the passage of SB 2972 and SB 37,  which disempowers faculty senates, and the White House’s preferential funding plan for colleges.

Similar injunctions have previously been issued by federal courts; two such cases were highlighted in Ezra’s ruling. In May this year, the U.S. District Court in the Southern District of Indiana issued an injunction against Indiana University’s policy that strictly limited overnight protests on campus from the hours of 11 p.m. to 6 a.m., and in October of last year, the U.S. District Court for the District of Maryland held that the University of Maryland could not ban all student organizations from holding events on a specific day. 

The ruling does not strike down the law or its associated policies; however, it does prevent the law’s enforcement in the UT System as the case continues. Other public university systems in Texas are not impacted by the injunction and are still required to enforce SB 2972. The defendants being sued in this case include the UT System Chancellor, the UT System Board of Regents and the presidents of UT and UTD. 

The injunction still allows the UT System’s governing board to designate what areas on its campuses are public forums for expression, which limits what spaces can be used for student activities and protests. Additionally, universities may still ask for identification from anyone on campus and remove non-students from their grounds, and individuals are still banned from wearing face coverings to obstruct identification or make law enforcement’s jobs harder. 

As of publication, the UT System’s legal counsel has not filed an appeal on the injunction. The state has 30 days to do so.

This is a breaking news story. The Retrograde will provide more details as new information emerges.

Comet Comments:

“Free speech should always exist. I don’t think that the time matters,” computer engineering freshman Jessica VanVooren said. “Obviously, there’s a certain amount of respect and local laws about sound levels but if you’re not over that, there should be no problem.”

“Texas has been no stranger to taking away our rights, year after year, from the ballot box to the classroom,” Cameron Samuels, executive director of Students Engaged in Advancing Texas (SEAT), said in a statement. “These attempts to undermine democracy and our free speech rights indicate an alarming trend we cannot afford to ignore. Students have rights, too. There is no future for our democracy without the civic leadership of our youth today. Free speech and expression safeguards a future that we hold power over.”

“I think free speech should exist after 10 p.m. for everyone, regardless of opinion,” biology junior Nathaniel Cook, copy editor for AMP, said.

“I think music sounds better after 10 p.m.,” literature senior Caleb Jenkins, station manager of RadioUTD, said. “The louder the sound, the louder the crowds! I want to enjoy my music. There shouldn’t be any laws against live events.”

“I think it is really interesting that we are limiting speech with all these protest things,” an anonymous pre-law professor said. “Campuses used to be hubs of academic freedom. It was professors that, through academic freedom, could teach on any topic, without fear of being fired. Now we can’t do that.”