Zac Krause
Edited by Mac Kang, Suraj Pandit, and Jia Lin
In a time when college and university campuses have emerged as battlegrounds for free expression, the University of Texas faced a defining moment on April 24th. On that morning, UT President Jay Hartzel, with the approval and likely encouragement of Texas Governor Greg Abbott, ordered Texas Department of Public Safety (DPS) troopers to arrive at the scene of a brewing protest [1]. Due to the eventual show of force from the DPS troopers, what followed is well known here at our university; 57 students were arrested and an extraordinarily heated debate emerged over whether or not the University's actions were justified.
Freedom of speech and assembly have long been protected and recognized as integral to the functioning of our democracy, which cast some doubt on the legitimacy of the university's actions on that day. Add to this the fact that in 2019, Governor Abbott signed SB18 into law, requiring all public universities to designate “common outdoor areas” as traditional public forums, areas where speakers are afforded the strongest speech protections [2]. Considering the robust speech and assembly protections afforded to individuals via the First Amendment generally, and additional protections arising from state legislation, one might wonder how President Hartzel sought to justify the protest crackdown on April 24th. The truth is that from a legal standpoint, the University was justified in its protest crackdown because it utilized time, place, and manner restrictions in the face of time, place, and manner violations. In its justification of the protest crackdown, UT cites a number of violations of institutional rules such as the erection of tents, unauthorized use of amplified sound, unauthorized use of tables, use of face coverings to conceal identity, etc [3]. No lawsuits have been filed related to the university's eventual show of force on April 24th. A lawsuit has been filed, however, related to UT’s attempt to preemptively prohibit the protest from occurring [4]. In that lawsuit, Students for Justice in Palestine v. Governor Abbott, the plaintiffs also argue that several Texas universities' free speech policies, specifically their definition of antisemitism as adopted due to an executive order, are unconstitutional violations of the First Amendment. In order to fully understand the legal proceedings of today, we have to understand the current state of free speech laws in the United States; more specifically, what the First Amendment demands when a state actor attempts to restrict speech.
Any analysis of Students for Justice in Palestine begins with an understanding of some foundational principles of the First Amendment. The First Amendment proclaims “Congress shall make no law… abridging the freedom of speech… or the right of the people peaceably to assemble” [5]. The Free Speech Clause bars the government from restraining the speech of individuals unless it falls into one of several narrow categories. Beginning with Gitlow v. New York in 1925, this right has been fully incorporated via the Fourteenth Amendment Due Process Clause, meaning the states are required to abide by it as well [6][7]. This freedom, however strong it may be, is not absolute [8]. Some types of speech are unprotected, and freedom of assembly can be constrained based on time, place, and manner restrictions. Examples of unprotected types of speech, which have been deemed "low value,” include child sexual abuse material, true threats, defamation, fraud, obscenity, and incitement of violence. Examples of permissible time, place, and manner restrictions on speech include limiting noise levels in certain places or at certain times, requiring permits for large demonstrations, or specifying designated areas for signs and posters on government property.
Aside from what has been deemed “low value” First Amendment speech, and aside from cases in which the speaker is a government actor, the government may restrict speech only if done so without regard to the speaker's message–in other words, without considering the “content.” If the state is to restrict speech with time, place, or manner restrictions, such restrictions must not show deference to any given viewpoint, or seek to suppress any given viewpoint [9]. In fact, on a number of occasions, the Supreme Court has held that the government may not restrict speech based on its content. The law or regulation must be ‘content neutral’ as in Texas v. Johnson where the court stated “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” [10][11][12].
In the famous First Amendment case Tinker v. Des Moines Independent Community School District, [13] a group of middle and high school students planned to wear black armbands to show their support for a truce in the Vietnam War, but were prohibited from doing so by the school administrators. The students sued the school district claiming that it had violated their rights of free expression. The Supreme Court sided with the students, holding that the school impermissibly restricted students' First Amendment rights by prohibiting them from wearing the armbands and that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Tinker court provided a standard for what speech can and cannot be prohibited. In order to justify a restriction of speech, the state must show that the conduct "materially and substantially interfere(s)” with its operations.
Then, in Healy v. James, [14] the court reiterated the “substantial interference” requirement in an application very similar to Students for Justice in Palestine vs. Abbott. In 1969, a group of university students attempted to begin a chapter of the left-wing student group called Students for a Democratic Society, but were denied official status by the president of their university who claimed that the group's philosophy was “antithetical to the school’s policies.” In this case, the Supreme Court sided with the students, reiterating that any restriction of speech must be content-neutral. Justice Powell, who wrote the majority opinion, proclaimed “The mere disagreement of the President with the group's philosophy affords no reason to deny it recognition.” He also made clear that even though Tinker was a case only involving K-12 education, “the precedents of this Court leave no room for the view that… First Amendment protections should apply with less force on college campuses.”
In light of how the First Amendment mandates the actions of the government in regard to restricting speech in an educational context, we can turn our attention back to the university conflict. On the day of the protests at UT, Governor Abbott tweeted “These protesters belong in jail. Antisemitism will not be tolerated in Texas. Period. Students joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled” [15]. Nothing in this tweet references time, place, or manner restrictions, nor does it make any mention of encampments or concealed identity, which has led many to view the Governor's reasoning for the suppression of speech with skepticism. As put by the Foundation for Individual Rights and Expression’s letter to Jay Hartzell: “It appears UT Austin based its response on objections to the protesters’ expressed support for Gaza and not any planned—or actual—violation of university policy or applicable law” [16]. Accordingly, students in the Palestine Solidarity Committee have joined a lawsuit against President Jay Hartzell, alleging that his preemptive cancellation of their protest and subsequent suspension of their group was a violation of the First Amendment.
Students for Justice in Palestine v. Abbott was filed in the US District Court for the Western District of Texas by Palestinian activist groups at public universities across Texas (plaintiffs) against Governor Greg Abbott, the respective university Presidents, and some members of the Board of Regents at the schools (defendants) [17]. In Count I, the plaintiffs challenged Governor Abbott's Executive Order GA-44 and the universities for their compliance with GA-44, alleging that the order mandates impermissible viewpoint discrimination and chills their speech in violation of their First Amendment rights. Count II was specific to another one of the Plaintiffs, Democratic Socialists of America, and Defendant UTSA, but was rejected on a lack of standing. Count III is specific to the University of Texas at Austin and is between Plaintiff Palestine Solidarity Committee at the University of Texas at Austin (PSC-UT) and Defendant Jay Hartzell. PSC-UT alleges that Hartzell’s cancellation of their protest and the group’s suspension was a pretext for impermissible viewpoint discrimination in violation of the First Amendment. We take a more in-depth look at these counts below.
Count I challenges Abbot's executive order (GA-44) and the universities' compliance with the order in updating their free speech policies.
A few months before the protests, Governor Greg Abbott signed executive order GA-44, requiring universities to “address the sharp rise in antisemitic speech” [18]. The order directed institutions of higher education to do the following:
1. Review and update free speech policies to address the sharp rise in antisemitic speech and acts…
…
3. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies…
The bulk of the definition of antisemitism as defined in the Texas Government Code that the order directs universities to adopt is not worthy of scrutiny within itself, but it also says that examples of what constitutes antisemitism can be found in the International Holocaust Remembrance Alliance's "Working Definition of Antisemitism" as adopted on May 26, 2016 [19]. When taking a look at this “Working Definition of Antisemitism,” [20] two particular examples stand out as relevant:
Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor;
Drawing comparisons of contemporary Israeli policy to that of the Nazis.
Soon after the issuance of GA-44, most Texas universities complied with the order by revising their free speech policies. UT Austin, UTSA, UT Dallas, and UH all incorporated the definition of antisemitism found in Section 448.001 of the Texas Government Code.
Count I posits that Abbott’s GA-44 impermissibly violates the student groups' free speech rights in violation of the First Amendment. It claims that the order unconstitutionally censors the student organizations based on the content of their speech and that they are prohibited from using “even peaceful political slogans commonly invoked” and that the “definition labels common and typical criticisms of foreign countries as antisemitic when made about Israel” [21].The plaintiffs also filed for a preliminary injunction against the enforcement of GA-44 and its application to the policies of their universities.
Count II is related solely to a student group titled “Democratic Socialist of America” and the University of Texas at San Antonio. It posits that UTSA’s prohibition of the phrase “from the river to the sea, Palestine will be free,” is impermissible viewpoint discrimination that violates the First Amendment and seeks injunctive relief.
Count III alleges that Hartzell’s cancellation of PSC-UT’s protest and the groups’ suspension was a pretext for impermissible viewpoint discrimination and violated the First Amendment.
On April 23rd, the Palestine Solidarity Committee announced a scheduled protest and walkout on Instagram, which included a collective walkout followed by afternoon sessions such as teach-ins with speakers, a pizza hour, study breaks, and even an art workshop. Soon after, the university notified the PSC-UT that they would not be permitted to protest because of its “declared intent to violate our policies and rules, and disrupt our campus operations” [22]. The basis for this claim was that PSC-UT had also posted, in reference to the planned protest, that they were to follow “In the footsteps of our comrades at Rutgers-New Brunswick SJP, Tufts SJP, and Columbia SJP, [...] tak[ing] back our university and forc[ing] our administration to divest, for the people of Gaza!” [23].
Count III alleges that UT Austin engaged in unconstitutional viewpoint and content discrimination by preemptively prohibiting the speech of the PSC-UT, which Plaintiffs allege was solely because of the content that PSC-UT sought to express at their demonstration. They also allege that PSC-UT was suspended from the university solely because of its viewpoints and the content expressed by its members, which is why they filed for a preliminary injunction mandating that PSC-UT be reinstated as an organization.
The Plaintiffs filed their initial complaint on May 16th. The Amended Complaint, which included Count III along with a motion for preliminary injunction, was filed on July 2nd. The defendants went on to file two motions to dismiss the complaint. On October 28th, Judge Robert Pitman of the United States District Court for the Western District of Texas Austin Division ruled on Defendants' motions for dismissal and on Plaintiffs' motion for a preliminary injunction largely in favor of the plaintiffs [24].
Defendants filed two motions to dismiss the complaint, the first of which was on the grounds that they lack subject matter jurisdiction, and the second of which argued that the Plaintiffs had not sufficiently stated a case. A motion to dismiss is a pretrial motion that if successful, throws out the relevant charge that has been filed. Judge Pitman determined that the University of Houston, the UH System Board of Regents itself, and the UT Austin Board of Regents itself were not official state officers and therefore Count II was dropped in its entirety because it was only pertaining to them [25]. Then, because of the decision in a case called Mi Familia Vota v. Abbott, in which The Fifth Circuit held that a governor’s issuance of an executive order is not a sufficient connection to enforcement to disqualify him from Eleventh Amendment Sovereign Immunity, Judge Pitman also denied Plaintiff’s standing to sue Governor Abbott [26]. Except for the removal of Governor Abbott as a relevant party, Counts I and III were left largely intact and have thus been permitted to move forward to trial.
After addressing the motions to dismiss and functionally narrowing the scope of this case, Judge Pitman turned his attention to the request for a preliminary injunction by the Plaintiffs [27]. A preliminary injunction is an “extraordinary remedy” that temporarily prevents a party from taking certain actions while a lawsuit is pending [28]. In the context of Count I, if a preliminary injunction were to have been granted, it would mean universities would not be permitted to “take any action in furtherance of… or in accordance with GA-44” [29]. As related to Count III, an injunction would grant the Palestine Solidarity Committee the right to return to the university campus with “the normal and typical permissions and resources it provides to student groups.” In this case however, Judge Pitman did not consider the preliminary injunction pertaining to Count III because the proposed injunction as filed by Plaintiffs in Dkt 21 did not call for the judge to do so. Despite the fact that “PSC-UT’s suspension is sufficient ongoing injury, traceable to Defendant Hartzell, and redressable by enjoining the suspension,” the injunctive relief was not formally requested in the complaint that was considered here. Judge Pitman did however, rule on the requested injunctive relief in regards to Count I, within which we likely can find prospective insight into the plight of Count III.
In order for a preliminary injunction to be granted, plaintiffs must be able to prove the following, with the burden of proof falling on the plaintiff: (1) likelihood of success on the merits, (2) irreparable harm in the absence of such relief, (3) a balance of equities in favor of the plaintiff, and (4) that the injunction is in the public interest [30].
The first requirement is the only requirement of interest in this case because plaintiffs and defendants agreed that the latter three requirements are met by virtue of the case’s nature. Requirement 2 is met because in Elrod v. Burns the court declared that the “loss of First Amendment freedoms, even for minimal periods of time, constitute(s) irreparable injury…” [31]. The third requirement is met because “the public interest and balance of the equities merge when the government is the opposing party” [32]. Finally, requirement four is met because injunctions against First Amendment violations are always in the public interest [33].
The first key requirement for an injunction to be granted is that the plaintiff must prove that they are likely to succeed on the merits. In other words, the court must determine that once the entirety of the case has taken course, including oral arguments, plaintiffs are more likely to be successful than to fail. In order to prove this, the plaintiffs needed to show that the university policies that complied with GA-44 did indeed restrict their speech in violation of the First Amendment. Despite the defendants claiming that the speech policies do not prohibit any specific expression, Judge Pitman found that the definition of antisemitism as it exists in GA-44 does constitute viewpoint discrimination [34]. He says that under the definition of antisemitism as outlined in the Texas Government Code, Plaintiffs “reasonably understand that their intended speech is now punishable… and hesitate to engage in such expression.”
Under the Tinker framework, a school is permitted to prohibit certain expressions only upon a showing that such expression would cause a “substantial disruption” of school activities. This is not a simple threshold to meet because the school administrator must show that it engaged in a restriction of expression because of “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Further applying Tinker as it was reiterated in Healy, Judge Pitman makes it clear that one must consider what can quantify as a substantial disruption “in light of the special characteristics of the environment’ in the particular case.” Given that the court has long recognized that “danger . . . from the chilling of individual thought and expression… is especially real in the University setting,” Judge Pitman recognized the special characteristic of universities as an environment for debate to push the facts of this case in favor of the plaintiffs. He found the unique role of universities as hubs for civic discourse to be outcome determinative for this case; “The revised university policies chill a kind of expression that is a hallmark of university activity and… the Court finds the Defendants cannot show this expression sufficiently rises to the level of a ‘substantial disruption’ at the university level.” In this, Judge Pitman has made a determination that the plaintiffs are likely to succeed on the merits of their case and that the universities who have complied with GA-44 do engage in impermissible viewpoint discrimination in violation of the First Amendment.
Even if all four threshold requirements for a preliminary injunction are met, a district court's decision to grant such an injunction is discretionary. Thus despite his acknowledgement that the plaintiffs were likely to succeed on the merits, the Judge did not ultimately grant the plaintiffs a preliminary injunction because he found their request to be overbroad. He did acknowledge, however, that if the plaintiffs do ultimately succeed, relief will be granted.
As Judge Pitman emphasized, any restrictions on speech in higher education must be content-neutral and cannot suppress dissenting views lacking clear evidence of substantial disruption. At its core, this case underscores the unique role of universities as arenas for civic discourse and debate, where robust protections for expression are paramount. When the case comes to trial, additional determinations related to Count III will be made. It has been determined that PSC-UT is eligible for injunctive relief that would entitle them to reinstatement at the University of Texas at Austin. Considering that Judge Pitman did not make any determination regarding the preliminary injunction for Count III, this issue will need to be resolved when the case is heard formally. In his determination on the likelihood of success on the merits of the preliminary injunction for Count I, Judge Pitman relied heavily on the special characteristics of universities as environments for debate. When this case is heard in full, the next judge will need to assess whether universities' role as hubs of civic discourse warrants outcome-determinative weight in resolving the separate issue present in Count III. The outcome of Students for Justice in Palestine v. Abbott will not only shape the free speech landscape at Texas universities but may also set a broader precedent for how public institutions navigate their dual obligation to ensure campus safety while respecting the fundamental rights of students.
[1] Sneha Dey et al., Police arrest more than two dozen pro-Palestinian demonstrators on UT-Austin campus amid tense standoff, Texas Tribune: UT-Austin Protests (April 24, 2024, at 9:00 CST), https://www.texastribune.org/2024/04/24/ut-austin-israel-hamas-war-palestine-student-arrests/
[2] S.B. 18, § 2(c)(1), 86th Leg., R.S. (Tex. 2019). https://capitol.texas.gov/tlodocs/86R/billtext/pdf/SB00018F.pdf#navpanes=0
[3] Adrienne Lee, Frequently asked questions about recent protests UT News, UT News, https://news.utexas.edu/2024/05/03/frequently-asked-questions-about-recent-protests/ (last visited Nov 21, 2024).
[4] Students for Justice in Palestine v. Abbott, No. 1:24-CV-523-RP (W.D. Tex. Oct. 28, 2024) https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172787806/gov.uscourts.txwd.1172787806.62.0.pdf (CourtListener)
[5] U.S. Const. amend. I
[6] Gitlow v. New York, 268 U.S. 652 (1925).
[7] Bruce E. Auerbach, Incorporation of the First Amendment, Free Speech Center at Middle Tennessee State University, (January 1, 2009), https://firstamendment.mtsu.edu/article/incorporation-of-the-first-amendment/
[8] The Foundation of Individual Rights and Expression, Limits to Free Speech, https://www.thefire.org/research-learn/limits-free-speech
[9] Scott Bomboy, The Constitutional Right to Protest at Universities, National Constitution Center: Blog Posts, (May 7, 2024), https://constitutioncenter.org/blog/the-constitutional-right-to-protest-at-universities
[10] Texas v. Johnson, 491 U.S. 397 (1989).
[11] Ward v. Rock Against Racism, 491 U.S. 781 (1989).
[12] Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972)
[13] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
[14] Healy v. James, 408 U.S. 169 (1972).
[15] Greg Abbott (@GregAbbott_TX), X, (April 24, 2024, 3:51 PM), https://x.com/GregAbbott_TX/status/1783237229252346194?lang=en
[16] Foundation for Individual Rights and Expression, Letter to University of Texas at Austin, (April 25, 2024), https://www.thefire.org/research-learn/fire-letter-university-texas-austin-april-25-2024-0
[17] Students for Justice in Palestine v. Abbott, No. 1:24-cv-00523-RP, 2024 U.S. Dist., at (E.D., Texas, July 2nd, 2024) https://pacer-documents.s3.amazonaws.com/170/1172787806/181132421261.pdf (CourtListener)
[18Exec. Order No. GA-44, 49 Tex. Reg. 2237. https://gov.texas.gov/uploads/files/press/EO-GA-44_antisemitism_in_institutions_of_higher_ed_IMAGE_03-27-2024.pdf
[19] Tex. Gov't Code § 448.001 (West 2024).
[20] International Holocaust Remembrance Alliance, Working Definition of Antisemitism, https://holocaustremembrance.com/resources/working-definition-antisemitism
[21] See [17], Students for Justice in Palestine v. Abbott, No. 1:24-cv-00523-RP, 2024 U.S. Dist., 21, at (E.D., Texas, July 2nd, 2024) https://pacer-documents.s3.amazonaws.com/170/1172787806/181132421261.pdf
[22] Jahmal Kennedy, UT suspends Palestine Solidarity Committee; cites alleged violation of institutional rules, (April 26, 2024), https://cbsaustin.com/news/local/ut-suspends-palestine-solidarity-committee-cites-alleged-violation-of-institutional-rules
[23] Palestine Solidarity Committee (@psc_atx), Instagram, https://www.instagram.com/p/C6G7WP9OkA0/?img_index=1 (last visited Jan. 17th, 2024)
[24] Students for Justice in Palestine v. Abbott, 1:24-CV-523-RP (W.D. Tex. Oct. 28, 2024) https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172787806/gov.uscourts.txwd.1172787806.62.0.pdf
[25] See [24], Students for Justice in Palestine v. Abbott, 1:24-CV-523-RP (W.D. Tex. Oct. 28, 2024), p. 8,
[26] Mi Familia Vota v. Abbott, No. 20-50793 (5th Cir. 2020)
[27] See [24], Students for Justice in Palestine v. Abbott, 1:24-CV-523-RP (W.D. Tex. Oct. 28, 2024), p. 15,
[28] Legal Information Institute, Injunction, https://www.law.cornell.edu/wex/injunction#:~:text=It%20is%20an%20extraordinary%20remedy,irreparable%20harm%20to%20the%20plaintiff.
[29] See [24], Students for Justice in Palestine v. Abbott, 1:24-CV-523-RP (W.D. Tex. Oct. 28, 2024), p. 23, https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172787806/gov.uscourts.txwd.1172787806.62.0.pdf
[30] See [28], Legal Information Institute, Injunction, p. 26, https://www.law.cornell.edu/wex/injunction#:~:text=It%20is%20an%20extraordinary%20remedy,irreparable%20harm%20to%20the%20plaintiff.
[31] Elrod v. Burns, 427 U.S. 347 (1976)
[32] Nken v. Holder, 556 U.S. 418 (2009)
[33] Texans for Free Enter. v. Texas Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013)
[34] See [24], Students for Justice in Palestine v. Abbott, 1:24-CV-523-RP (W.D. Tex. Oct. 28, 2024), p. 19,