Se­nate to probe col­lege cam­pus speech

Texas State hear­ing comes after se­ries of con­tro­ver­sies in state.

Austin American-Statesman - - FRONT PAGE - By Ralph K.M. Hau­r­witz rhau­r­witz@states­man.com

When a leg­isla­tive panel meets at Texas State Univer­sity in San Mar­cos on Wed­nes­day to con­sider free­dom of speech on col­lege cam­puses, it will be wad­ing into a topic fraught with le­gal, po­lit­i­cal and safety over­tones.

At first blush, the two-sen­tence charge to the Se­nate State Af­fairs Com­mit­tee from Lt. Gov. Dan Pa­trick, a Repub­li­can, seems straight­for­ward enough: “As­cer­tain any re­stric­tions on Free­dom of Speech rights that Texas stu­dents face in ex­press­ing their views on cam­pus along with free­doms of the press, re­li­gion, and as­sem­bly. Rec­om­mend pol­icy changes that pro­tect First Amend­ment rights and en­hance the free speech en­vi­ron­ment on cam­pus.”

The pub­lic hear­ing comes after events on cam­puses across the na­tion that il­lus­trate the com-

plex­ity of free speech is­sues, with Texas a case in point.

In Novem­ber, Univer­sity of Texas po­lice ousted demon­stra­tors wear­ing masks and car­ry­ing torches who gath­ered on the steps of the South Mall. In May, a com­mence­ment speech by Repub­li­can Sen. John Cornyn was can­celed at Texas South­ern Univer­sity in Hous­ton after stu­dents protested, and in Oc­to­ber the his­tor­i­cally black col­lege halted GOP state Rep. Briscoe Cain’s speech after stu­dent pro­test­ers showed up. In Au­gust, Texas A&M Univer­sity — in a move that le­gal schol­ars said rested on thin ice — can­celed a white na­tion­al­ist rally that had been booked months ear­lier, cit­ing safety con­cerns.

Texas State has had its share of con­tro­versy as well. An opin­ion col­umn in the stu­dent news­pa­per in Novem­ber ran un­der the head­line “Your DNA is an abom­i­na­tion” — a lyric by rap­per-song­writer Ken­drick La­mar — and railed against white­ness. The pa­per apol­o­gized and the school’s pres­i­dent, Denise Trauth, said she was “deeply trou­bled” by the ar­ti­cle. The in­ci­dent came to­ward the end of a se­mes­ter that saw white su­prem­a­cist fly­ers posted on cam­pus by out­siders on nu­mer­ous oc­ca­sions.

UT draws line at ‘harassment’

It’s ax­iomatic that pop­u­lar speech doesn’t need much pro­tec­tion, if any. The First Amend­ment also ex­ists to pro­tect con­tro­ver­sial, even re­pug­nant, speech. But there are lim­its. Court rul­ings al­low schools to reg­u­late the time, man­ner and place of pub­lic speech.

The UT cam­pus, for ex­am­ple, is not open to protests staged by groups un­af­fil­i­ated with the school like the torch-bear­ing demon­stra­tors in Novem­ber. Those pro­test­ers, whom of­fi­cials ap­par­ently con­sid­ered white su­prem­a­cists, also vi­o­lated a rule ban­ning open flames and masks that con­ceal iden­tity to hin­der law en­force­ment.

“The ac­tions of white su­prem­a­cists and other hate groups are com­pletely anath­ema to UT’s val­ues, and I ab­hor what they rep­re­sent,” UT Pres­i­dent Gre­gory L. Fenves said at the time.

UT spokesman J.B. Bird said the en­tire cam­pus is a free speech zone “with the ex­cep­tion of ded­i­cated busi­ness and teach­ing ar­eas.”

The univer­sity’s rules on speech and as­sem­bly ban ob­scene ma­te­ri­als, defama­tion, in­cite­ment to vi­o­late the law and a some­what squishy cat­e­gory la­beled “ver­bal harassment” that can in­clude threats, hos­tile or of­fen­sive speech di­rected at one or more in­di­vid­u­als and in­sults based on such fac­tors as race, na­tional ori­gin or sex­ual ori­en­ta­tion. Speak­ers us­ing am­pli­fied sound are re­stricted to the univer­sity’s West Mall, and hand-held signs made of rigid ma­te­ri­als like wood or metal are banned for safety rea­sons.

“We’ve ini­ti­ated a re­view of our poli­cies in the last few months,” said Dan Sharphorn, vice chan­cel­lor and gen­eral coun­sel at the UT Sys­tem, which over­sees the Austin flag­ship and 13 other cam­puses. “We’re tak­ing it se­ri­ously. I think we have good and fair le­gal poli­cies, but I think it’s a good idea to take a look at it.”

Should heck­lers be pun­ished?

Texas State’s rules al­low any per­son to dis­trib­ute lit­er­a­ture out­doors on its grounds, but post­ing of fly­ers is re­stricted to boards and kiosks for use only by stu­dents, fac­ulty and staff. The Anti-Defama­tion League, which tracks dis­tri­bu­tion of white su­prem­a­cist ma­te­ri­als on col­lege cam­puses na­tion­wide, counted 61 in­ci­dents in Texas since Septem­ber 2016 of such fly­ers, posters or ban­ners, with 11 of them at Texas State, more than at any other school. UT had 10 in­ci­dents.

The vast ma­jor­ity of the post­ings are by out­side ac­tivists with far-right groups, as op­posed to univer­sity-af­fil­i­ated peo­ple, said Carla Hill, a se­nior in­ves­tiga­tive re­searcher with the ADL’s Cen­ter on Ex­trem­ism. Such groups, which have be­come more ac­tive dur­ing the can­di­dacy and pres­i­dency of Don­ald Trump, in­clude Amer­i­can Van­guard (later re­named Van­guard Amer­ica), Pa­triot Front and Iden­tity Evropa, she said.

Some con­ser­va­tive Repub­li­cans are ex­pected to push for an ex­pan­sion of cam­pus free speech rights when the Leg­is­la­ture meets next year.

“In the ’60s, it was those more to the left of cen­ter who were fight­ing for free­dom of speech on cam­pus,” said Thomas Lind­say, di­rec­tor of the Texas Pub­lic Pol­icy Foun­da­tion’s Cen­ter for Higher Ed­u­ca­tion.

Lind­say would like to see state leg­is­la­tion call­ing for the sus­pen­sion of a stu­dent or em­ployee after the sec­ond time he or she vi­o­lates the free speech rights of oth­ers — an ef­fort to cut down on the so-called heck­ler’s veto.

A cam­pus free speech mea­sure passed the Texas Se­nate last year with just one Demo­crat’s sup­port but never got a hear­ing in the House. Sen. Dawn Buck­ing­ham, R-Lake­way, said in her au­thor’s state­ment re­gard­ing Se­nate Bill 1151 that cam­pus speech codes “sub­stan­tially lim­it­ing First Amend­ment rights are com­mon and be­com­ing more preva­lent.”

Her mea­sure would have barred schools from des­ig­nat­ing par­tic­u­lar ar­eas as free speech zones, but would have per­mit­ted “rea­son­able re­stric­tions” on the time, place and man­ner of pub­lic speech, pro­vided that the re­stric­tions are nar­rowly tai­lored and con­tent-neu­tral.

Demo­cratic state sen­a­tors, in­clud­ing Kirk Wat­son of Austin and Royce West of Dal­las, ar­gued that the U.S. and Texas con­sti­tu­tions, along with court rul­ings, al­ready pro­tect free speech on cam­pus. Sen. Kel Seliger, a Repub­li­can from Amar­illo who chairs the Higher Ed­u­ca­tion Com­mit­tee, made the same point dur­ing his panel’s hear­ing on Buck­ing­ham’s bill.

And when it came time for the full Se­nate to vote, Seliger was listed as present but not vot­ing. That might ex­plain why Pa­trick, the lieu­tenant gover­nor and the Se­nate’s pre­sid­ing of­fi­cer, as­signed the State Af­fairs Com­mit­tee rather than Seliger’s panel to ex­plore cam­pus free speech is­sues and make rec­om­men­da­tions.

JAY JANNER / AMER­I­CAN-STATES­MAN 2016

Anti-Don­ald Trump pro­tester Pa­tri­cia Romo (lower left), 22, ar­gues with Trump backer Cody Wil­liams, 18, dur­ing an anti-Trump demon­stra­tion in Novem­ber 2016 at Texas State Univer­sity in San Mar­cos. A cam­pus free speech mea­sure passed the Texas Se­nate last year but never got a hear­ing in the House.

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