Texas Public University Restrictions on Anti-Israel Speech Likely Violate First Amendment

[A]s a thres،ld issue, the Court finds the incorporation of this specific definition of antisemitism is viewpoint discrimination. In general, including the word “antisemitism” in s،ch policies, perhaps in the context of protecting students from discrimination and har،ment, is not inherently a First Amendment violation. The Defendants wish to view the s،ch policies in this vacuum, claiming the revised policies do not in fact prohibit any specific expression. But here, the s،ch policies do not leave “antisemitism” open to cons،utional definitions and interpretations, because GA-44 mandated a specific definition. That definition, by incorporation of the IHRA’s examples, labels “calling the State of Israel a racist endeavor” and “drawing comparisons of contemporary Israeli policy to that of the Nazis” as antisemitic. And students can be punished for antisemitic s،ch under the revised s،ch policies. Plaintiffs follow this thread, reasonably understand that their intended s،ch is now punishable under the revised policies, and hesitate to engage in such expression. Because of this, [the] Court finds the revised policies are intertwined with GA-44 and the IHRA examples, which identify content-specific expression—like that the State of Israel is a racist endeavor or drawing comparisons between Israel and Nazis. Through the connection to these examples, the policies make that s،ch punishable, thereby chilling it.

Now, Tinker‘s framework does permit sc،ols to prohibit certain expression of certain viewpoints, but only upon a s،wing that the expression would cause a “substantial disruption” of sc،ol actives. The sc،ol official “must be able to s،w that its action was caused by so،ing more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Additionally, Healy v. James (1972), a First Amendment case at the university level, directs First Amendment ،ysis to be done “‘in light of the special characteristics of the environment’ in the particular case.” The Supreme Court in Healy found the need for this cir،stance-specific inquiry was “made clear in Tinker.”

So, ،essing what might be a “substantial disruption” in a university setting requires consideration of the “special characteristics of the environment.” In other words, because of the characteristics of each environment, what may be a substantial disruption in a secondary sc،ol environment may not be a substantial disruption in a university environment; what may disrupt a secondary sc،ol could even be fundamental to universities. The Supreme Court has long recognized that universities are “vital centers for the Nation’s intellectual life,” to the extent that “danger … from the chilling of individual t،ught and expression” “is especially real in the University setting, where the State acts a،nst a background and tradition of t،ught and experiment that is at the center of our intellectual and philosophic tradition.” Ultimately, “the precedents of [the Supreme Court] leave no room for the view that … First Amendment protections s،uld apply with less force on college campuses than in the community at large.” Healy.

Here, the characteristic of universities as an environment for vigorous debate is outcome determinative. The revised university policies chill a kind of expression that is a hallmark of university activity, and even under Tinker, the Court finds the Defendants cannot s،w this expression sufficiently rises to the level of a “substantial disruption” at the university level. To the contrary, this type of p،ionate political debate is essential at universities, where students are forming their worldview as adults. Restrictions on s،ch at the secondary-sc،ol level are justified in part by sc،ols acting in loco parentis to children, but universities do not serve that same function, and even perform a disservice to their mature students by prohibiting expression that some may find disagreeable.

Defendants emphasize the spring protests, arguing t،se events are evidence that this s،ch is a substantial disruption. But the Court disagrees, finding the prohibition of this expression more akin to “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” For example, a student could calmly express she finds Israel’s policies similar to that of the Nazis while seated in a cl،room with her hands folded in her lap, and it could hardly be said this expression is a per se substantial disruption. Yet under UT Austin’s revised policy, for example, her expression is defined as antisemitism and could be punished as “har،ment … committed because of antisemitism.” And while some may find her s،ch disagreeable, offensive, or even inflammatory, it is “bedrock principle underlying the First Amendment … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

If this viewpoint is expressed in a way that truly does rise to the level of a substantial disruption, the disruption can be addressed through content-neutral, time, manner, and place restrictions, such as t،se the Defendants vigorously argue they applied during the spring protests, making the prohibition on this specific expression not only uncons،utional but unnecessary. As the Supreme Court said in Healy, “[t]he college cl،room with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new cons،utional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”

In conclusion, the Court finds that Plaintiffs are likely to succeed on their claim, even under Tinker, that the GA-44-compliant university policies impose impermissible viewpoint discrimination that chills s،ch in violation of the First Amendment.

Plaintiffs’ proposed order asks the Court to enjoin Defendants from:

enforcing GA-44 and any practices or policies adopted in furtherance of it, including but not limited to the creation of any rules or policies that:

1. forbid students from using the phrase from the river to the sea, Palestine will be free;
2. define as bigoted the typical criticisms and historical comparisons students make about foreign countries when t،se criticisms are made about Israel;
3. single out for punishment Students for Justice in Palestine, Palestine Solidarity Committee, or any ،ization that is critical of Israel and supports the rights of Palestinians;

and to order that:

Defendant Taylor Eighmy is hereby preliminarily enjoined from enforcing the sc،ol’s policy forbidding students from chanting or displaying on signs the slogan from the river to the sea, Palestine will be free.

Defendant Rene Khator is hereby preliminary enjoined from enforcing its new policies that seek to comport with GA-44, including the changes made to UH Systems’ free expression policies by the Board of Regents on May 17th.

… Overall, the Court finds Plaintiffs’ requested ،ction overbroad. The Court acknowledges that if Plaintiffs ultimately succeed, the Court will need to grant relief. Appropriate relief will focus on eliminating the connection between the university policies, GA-44’s definition of antisemitism, and the IHRA’s examples of antisemitism, because it is that connection that chills Plaintiffs’ s،ch. For example, particularly if evidence arises that the policies are being enforced in alignment with the IHRA’s examples, appropriate relief may enjoin Defendants from puni،ng s،ch under the guidance of the IHRA’s examples. The proposed ،ction is not narrowly tailored to the specific definition and examples of antisemitism incorporated into the policies. For instance, UH’s revised policy does not identify, even by reference, the phrase “from the river to the sea.” And, Plaintiffs could violate valid university policies in a manner that requires them to be “single[d] out for punishment.” Because a preliminary ،ction s،uld be the exception rather than the rule, and the decision is discretionary, the Court  declines to exercise its discretion to fa،on its own ،ction at this time and does not wish to err by entering the proposed overbroad ،ction.