Federal judge temporarily blocks key parts of state law that limits campus protests

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A federal judge in Austin has temporarily blocked key parts of Texas' new law limiting expression on campuses, halting the University of Texas System's enforcement of a ban on overnight expression and limits on speakers, amplified sounds and drums during the last two weeks of the semester.

U.S. District Judge David A. Ezra on Oct. 14 said the student groups who brought the case are likely to succeed on their claims that Senate Bill 2972 violates their First Amendment rights and would be irreparably harmed without relief. He wrote that the clause added to the law by the Legislature instructing universities to uphold the First Amendment "does not change the fact that the statute then requires universities to adopt policies that violate those very constitutional protections."

"The Court cannot trust the universities to enforce their policies in a constitutional way while Plaintiffs are left in a state of uncertainty, chilling their speech for fear that their expressive conduct may violate the law or university policies," Ezra wrote.

UT System spokesperson Ben Wright said in a statement the system cannot comment on the lawsuit but added that it "complies with the law and court orders."The Texas Tribune also requested comment from Brandon Creighton, the bill's author who resigned from the Texas Senate on Oct. 2 to become Texas Tech University System's chancellor. He did not immediately respond.

The Foundation for Individual Rights and Expression sued the University of Texas System in federal court on Sept. 3 to block SB 2972, which creates rules for campus protests and gives university systems’ governing boards the power to limit where they can take place.

FIRE attorneys argue that the state law violates the First and Fourteenth Amendments because it bans protected expression from students and university employees on campuses from 10 p.m. to 8 a.m.

“The First Amendment doesn’t set when the sun goes down,” said FIRE attorney JT Morris in September. “University students have expressive freedom whether it’s midnight or midday, and Texas can’t just legislate those constitutional protections out of existence.”

Lawmakers passed SB 2972 during this year’s regular legislative session largely in response to last year’s pro-Palestinian protests on university campuses. Republicans who support the law say it will prevent disruption and unsafe behavior seen during those demonstrations. Critics say it contradicts previous conservative efforts to protect free speech rights on Texas campuses.

Here’s what you need to know about the effort to block the law.

What the law does: SB 2972, authored by State Sen. Brandon Creighton, R-Conroe, creates new limits on how people can protest on campus and carves out blackout hours for expressive activity, a term that has attracted criticism due to its broad interpretation.

SB 2972 took effect Sept. 1, essentially walking back a prior law passed by the Texas Legislature in 2019 that mandated all outdoor spaces on state universities be designated as open forums for public speech.

In addition to the overnight restrictions, the law prevents demonstrators from using microphones or other devices to amplify sound while protesting during class hours or if it intimidates others or interferes with campus operations, a university employee or a peace officer doing their job.

Protesters are also barred from building encampments, taking down an institution’s U.S. flag to put up another nation’s or organization’s banner, and wearing disguises to avoid being identified or to intimidate others. In addition, university employees and students at a campus protest are required to provide proof of their identity and status with the school when asked by a university official.

What the lawsuit says: FIRE attorneys are suing the University of Texas System on behalf of student and campus groups that say the system’s implementation of SB 2972 would harm them. Those student groups include two music clubs, a religious organization, a political advocacy group and an independent student newspaper.

FIRE’s attorneys say the way university officials interpret SB 2972 — and in particular the term “expressive activities” — could infringe on protected speech and expression.

“This law gives campus administrators a blank check to punish speech, and that authority will inevitably be used to target unpopular speech,” said FIRE attorney Adam Steinbaugh. “Administrators have plenty of ways to prevent disruptive conduct that do not involve such a broad censorship mandate.”

Attorneys say the law would allow university officials to discipline students for acts like playing music, worshipping at night, wearing a hat with a political message or writing an op-ed during that restricted timeframe.

The religious student group FOCUS at UT-Dallas, the lawsuit says, regularly hosts events on campus that, while scheduled to end at 10 p.m., often extend beyond that time as students stay to talk with ministers and each other. FOCUS worries the university could limit those evening activities under the new law.

“Our organization gives students on campus a place to worship with one another and hear from Christian leaders,” said FOCUS committee chair Juke Matthews. “This law would yank away part of their support system right at the most stressful time of the term.”

The new law could also be used to discipline student journalists, said Gregorio Olivares Gutierrez, the editor-in-chief of The Retrograde, an independent student newspaper at UT-Dallas. According to the lawsuit, journalists at the student newspaper report on news, interview sources and travel on campus between 10 p.m. and 8 a.m., activities that FIRE says fall within the definition of expressive activities.

“Under these new rules, we’re at risk of being shut down simply for posting breaking news as it happens,” Gutierrez said. “With that threat hanging over our heads, many student journalists across the UT system face the impossible decision between self-censorship and running a story that criticizes the powers on campus.”

The suit names as defendants the members of the University of Texas System Board of Regents, UT System Chancellor John M. Zerwas, UT-Austin President Jim Davis and UT-Dallas President Prabhas V. Moghe.

A UT System spokesperson said they couldn’t provide a comment or statement because it involved ongoing litigation. Spokespeople for UT-Austin and UT-Dallas did not immediately respond to a request for comment.

Freedom of speech in Texas: Republican lawmakers pushed for SB 2972 in response to the pro-Palestinian protests on university campuses that swept the U.S. last year.

At UT-Austin, police arrested more than 100 people at one demonstration after the university president requested state trooper support from the governor. The move spurred widespread criticism from students, who said police action was unwarranted against the peaceful demonstrations, but praise from Texas Republicans, who described the protests as being antisemitic.

Republicans also used the protests as justification to pass Senate Bill 326, which incorporated a common but controversial definition of antisemitism into disciplinary proceedings at Texas’ public schools. While the law didn’t prescribe disciplinary actions for antisemitism, it gave administrators examples to use when deciding whether a violation of their existing code of conduct was motivated by antisemitism, Rep. Giovanni Capriglione said. The law went into effect in May.

Critics of that law say it could punish or discourage some students from exercising their free speech rights. Groups like Jewish Voice for Peace argued against its passing, saying it could suppress legitimate criticism of Israel and infringe on free speech.

The new laws come amid a broader push by state legislators to deepen their control over higher education institutions, according to PEN America, a national free expression group. According to an analysis PEN America published in July, legislators have introduced more than 70 bills across 26 states that “censor” higher education in one form or another, whether through restrictions on what can be taught or policies that undermine academic freedom.

FIRE’s lawsuit against the UT System comes amid other First Amendment legal battles centered around Texas schools. FIRE is also suing the Texas A&M University System over a ban on on-campus drag shows. Courts this year have sided with students who sued to reverse drag show bans at Texas A&M’s flagship and West Texas A&M. In August, the ACLU and other groups sued to block a DEI ban in Texas’ K-12 public schools, arguing that it violated the First and Fourteenth Amendments.

Disclosure: Texas A&M University System, University of Texas - Dallas, University of Texas System, University of Texas at Austin and West Texas A&M University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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