Campus free speech is getting murky for Republican governors

Republican states spent years swooping in to bolster safe spaces for conservative voices at public universities in the name of fighting liberal censorship. The Israel-Gaza war is causing many of them to rethink free speech protections.

State troopers and local police this week arrested scores of demonstrators who assembled at flagship public schools in red states with a history of setting trends on free speech, diversity programs and LGBTQ+ issues for the right. Texas institutions are staring down an order from Gov. Greg Abbott to overhaul campus policies. In Florida, Gov. Ron DeSantis is suggesting expelling students who cross the line separating free speech from targeted harassment.

A wave of pro-Palestinian unrest is not only challenging lawmakers who cemented campus free speech protections in recent years, but also creating a political test for laws and legal doctrines honed during the Civil Rights era and the Vietnam War. The moment is forcing higher education officials to balance their obligations to free expression with the legal authority they possess to limit defiant disruptions as antiwar demonstrations spread and graduation season approaches.

“You can’t just have a blanket exclusion at a public university for speech activity, protests, marches, demonstrations and loud speeches,” Mark Rotenberg, the top lawyer for the Hillel International organization and a Reagan-era Justice Department official, said in an interview. “That is completely clear from long-standing constitutional precedent. But by the same token, protesters do not have a right, including at public universities, to simply call their shots as they want.”

Public universities face stricter legal requirements to uphold the First Amendment than Columbia, Yale and other private schools. And Texas, Florida and Indiana are among roughly two dozen states that have some form of free expression law for colleges on their books, according to the Foundation for Individual Rights and Expression free speech advocacy organization. They also exist in places like deep-blue California, where a legislative fight over student protests is pitting civil liberties advocates against Democratic lawmakers.

Abbott promoted his signature of Texas’ campus free speech law in 2019 amid Republican complaints that so-called cancel culture had seized higher education and grown hostile to conservative views.

The law requires public institutions to ensure common outdoor areas on campus “are deemed traditional public forums,” set disciplinary policies for students and faculty who “unduly interfere” with other’ expression and created more protections for student organizations. It also reinforced schools’ authority to set reasonable restrictions on the time, place, and the manner of those activities.

But conservative leaders started outlining a different vision even before police started clashing with and arresting dozens of people on the flagship campuses for University of Texas, Indiana University and elsewhere this week.

Abbott issued an executive order last month demanding that universities review and update their speech codes by this summer to address antisemitic incidents, and ensure pro-Palestinian student organizations face discipline for violating those policies. Earlier this month, Texas Lt. Gov. Dan Patrick also suggested lawmakers examine public colleges’ free speech procedures and antisemitism prevention policies when they reconvene next year.

“You've got to be able to operate a school, you've got to be able to keep your students safe,” Texas Republican state Sen. Paul Bettencourt said in an interview.

“You can't let occupations occur on public lawns, for example, because all that’s going to do is end up with the same endpoint that Columbia had — which is a closed school and students, especially Jewish students, feeling that they don't feel safe anymore,” said Bettencourt, a member of the Texas Senate education committee and a co-author of the 2019 state campus expression law. “That's not tolerable in the state of Texas.”

Abbott’s office did not respond to a request for comment, but on Wednesday, as campus arrests unfolded, he posted on social media that “These protesters belong in jail.”

In Florida, DeSantis has also taken a hard line against pro-Palestinian groups and their campus events since the war erupted.

“When you’re chasing Jewish students around, when you’re not letting a Jewish professor enter a building, when you’re targeting people like that — that’s not free speech, that’s harassment,” DeSantis said Wednesday during a bill signing event near Tampa. “You do that in Florida at our universities, we’re showing you the door. You’re going to be expelled when you’re doing that stuff."

The state has its own campus free speech law signed by former Republican then-Gov. Rick Scott, who is now in the Senate. The DeSantis administration, however, has been at the center of a legal fight over whether schools can cancel certain student groups despite free speech concerns. DeSantis is also calling to expel student demonstrators and cancel the visas of foreign students studying in the U.S. who participate, after urging schools in 2019 to embrace debate and controversial topics.

“The political balance of all of this was exactly the opposite from where it is now,” said Michael Dorf, a Cornell Law School constitutional law expert. “You heard people on the right complaining that the colleges and universities had gone overboard in attending to the sensitivities of people being offended by a bunch of things.”

Now prominent Republicans, including House Speaker Mike Johnson, are calling for National Guard troops to be deployed to clamp down on protests.

“It’s not an accident that it’s Mike Johnson, rather than the Democrats in the House, who are going to Columbia to decry it as insufficiently protective of the sensitivities of a minority group,” Dorf said in an interview. “He’s making the same kinds of claims that the DeSantises of the world were complaining about less than a year ago.”

Free speech rights also have limits, including on college campuses. Schools can set reasonable restrictions on the time, place and manner of protests — and administrators are leaning hard into that wiggle room to justify crackdowns that have prompted growing alarm from an array of civil liberties and academic organizations.

Police and Indiana University officials said demonstrators violated campus rules when they tried to set up tents and canopies as part of a protest on the Dunn Meadow expanse in Bloomington. Much like in Texas, a 2022 Indiana law prohibits state institutions from setting certain restrictions on expressive activity.

University of Texas officials had warned the Palestine Solidarity Committee student organization not to host a “Popular University for Gaza” event on campus, citing the potential for disruption as students prepare for the end of the semester.

“Our University will not be occupied,” UT-Austin President Jay Hartzell wrote to campus Wednesday after the institution and Abbott summoned state troopers to campus to assist local police.

Campus demonstrations at Florida State University and the University of Florida are being held in check by administrators threatening steep consequences, including suspension, for students and faculty that step out of line.

Then there’s California.

State legislative committees have advanced a bill that would require the California’s public universities to to prohibit advocating genocide and train all students on how to exchange ideas in a civil manner.

“In recent months and weeks we’ve witnessed an alarming trend of escalating harassment, intimidation and violence targeted at marginalized groups on our campuses,” state Sen. Steve Glazer, a onetime adviser to former Gov. Jerry Brown and a state university trustee, said at a Tuesday hearing on the bill. “This obviously threatens the safety and wellbeing of our students, faculty and staff. It threatens the educational environment, and it threatens the free exchange of ideas.”

Yet despite several amendments drafted to avoid conflicts with the First Amendment and the state constitution, the measure continues to face steep opposition from civil liberties and student groups.

“Leaders of American colleges, universities and political officials are reacting to the sense that there is this geometric rise in antisemitic hatred on college campuses, including at very elite institutions,” Rotenberg said. “And folks want something done about it.”

Andrew Atterbury and Blake Jones contributed to this report.