Greg Abbott Violates the 1st Amendment. Again.

Too fitting, alas.

When Curmie uses the term “authoritarian asshole” to describe Texas Governor Greg Abbott, he understands that the noun in question represents an opinion: an opinion shared, he suspects, by the majority of readers of this blog, but an opinion nevertheless.  The adjective, however, must be considered an objective truth.  Abbott thinks everyone should conform to his version of ethics on every possible subject, and he’ll use every resource available to punish them if they don’t.

Abbott, of course, purports to be upholding the principles articulated in the Ten Commandments, but he fares a lot better in the early ones about being Judeo-Christian than the later ones; he’s actually rather a fan of bearing false witness, for example.  Nor are we talking here about things like a restrictive abortion law or requiring age verification to visit pornsites.  The former might be (probably isn’t, but might be) grounded in an understandable belief that human life begins at the embryonic stage of development or earlier.  The latter reflects a reasonable, if logistically futile and constitutionally problematic, intention of keeping pornographic materials out of the hands of minors.

Over the past few weeks, however, Abbott has obviously and blatantly violated the 1^st Amendment protections of pro-Palestinian students and others.  The first round of this debacle came in the form of an executive order in response to anti-semitism.  Problem was, it restricted the speech of a particular group of people—in this case, those supporting Palestinian autonomy—but no one else’s. 

The response from FIRE (that’s the Foundation for Individual Rights and Expression) was, as usual, right on the money.  Here’s the salient part:

Anti-Semitism on campus is a real problem. When anti-Semitic speech crosses beyond the First Amendment’s protection, Texas institutions have a moral and legal obligation to take action. But today’s executive order relies on a definition of anti-Semitism that reaches core political speech, including criticism of Israel. The order also singles out student organizations by name, suggesting these groups should draw official scrutiny on account of their views.

State-mandated campus censorship violates the First Amendment and will not effectively answer anti-Semitism. By chilling campus speech, the executive order threatens to sabotage the transformative power of debate and discussion. That’s in sharp contrast to Texas state law, which wisely recognizes “freedom of speech and assembly as central to the mission of institutions of higher education.” When speech on contentious issues is subject to punishment, minds cannot be changed.  

Curmie would explain that the definition of anti-Semitism in question is included in Texas Government Code Section 448.001; it is ultimately derived from the International Holocaust Remembrance Alliance’s “working definition.”  One might reasonably surmise that such an organization might have a rather broader definition of the term than what might be considered normative.  Even the IHRA, however, includes this proviso: “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.”

Monday morning Curmie watched a FIRE webinar featuring Alex Morey, that organization’s Vice President of Campus Advocacy; Will Creeley, their Legal Director; and Nico Perrino, their Executive Vice President.  There were several phrases that were repeated multiple times: “viewpoint and content neutral,” “reasonable time, place, and manner restrictions,” “true threats and intimidation,” “severe, persuasive, and objectively offensive.” 

Whatever justification there may have been for Abbott’s executive order, it most certainly was not viewpoint and content neutral: he mentions two student organizations by name, having unilaterally decided they were guilty of violating free speech policies, and insists on revising existing policies to accommodate his desire to stifle the rights of those who don’t share his views. 

Abbott is correct that “from the river to the sea, Palestine shall be free” has been used by Hamas supporters to advocate the elimination of the state of Israel or even of Jews in general, but is neither denotatively problematic (it varies little from “we shall overcome”) nor objectively offensive.  The slogan has also been used by those who simply want a Palestinian homeland out from under the proverbial thumb of Israeli control. 

Creeley, as he had in a Los Angeles Times opinion piece co-written with renowned legal scholar Eugene Volokh cited by Curmie back in December, insisted that… wait for it… context matters.  In the webinar he argued that simply chanting that slogan remains protected speech; doing so while brandishing a weapon or engaging in true threats or intimidation, however, would be a different matter.  Context!

But, as they say in the late-night infomercials, Wait!  That’s not all!  If FIRE was unimpressed with the executive order, they pulled no punches in their commentary on calling in the cops to prevent a protest on April 24, simply because Governor Abbott didn’t like it… and because the University of Texas-Austin President Jay Hartzell is a spineless idiot who cravenly went along.  Dozens of arrests were made, and one photojournalist (ironically enough, from the local Fox affiliate!) was dragged to the ground from behind and detained, although video evidence shows that he was, as instructed, moving back.  In any sane society, that cop would be summarily fired and charged with first-degree assault.  Chances of that happening in Greg Abbott’s Texas: roughly those of Kristi Noem being named PETA’s Person of the Year.

Angel Eduardo’s piece on the FIRE website is headlined, “Texas tramples First Amendment rights with police crackdown of pro-Palestinian protests,” and is accompanied by the photo you see to the right.  It doesn’t get any better for Abbott and his minions later in the article.

First, there’s the re-visiting of the executive order:

Threatening expulsion for expression that some — or even many — may find offensive is a speech-chilling encroachment on students’ First Amendment rights. This is especially true when “anti-Semitism” is defined to target core political speech — such as criticism of Israel — which FIRE has warned Abbott’s order effectively does.

Then comes the link to a letter from FIRE’s Jessie Appleby to UT President Hartzell.  She gets right to the point, decrying in the first paragraph the university’s 

... outrageous and unnecessary use of riot police yesterday afternoon to forcibly disperse students and faculty engaged in a peaceful Gaza solidarity walk-out on campus, taking journalists covering the event with them.  UT Austin, at the direction of Governor Greg Abbott, appears to have preemptively banned peaceful pro-Palestinian protesters due solely to their views rather than for any actionable misconduct.

Tell us what you really think, Jessie!  She’s not done, though: 

UT Austin’s disproportionate response to a seemingly peaceful protest, on expressly viewpoint-based grounds, raises serious constitutional concerns. As a public institution, any university restriction on student expression must comport with the First Amendment’s “bedrock principle” of viewpoint neutrality…. rules must be viewpoint- and content-neutral, narrowly tailored to serve a significant government interest, leave open ample alternative channels for communication, and—perhaps most importantly—not selectively enforced based on a speaker’s viewpoint.

Moreover, 

Texas law is clear: Outdoor common areas on state university campuses are traditional public forums open for “any person to engage in expressive activities in those areas of the institution’s campus freely…. A peaceful protest in an area of a state university that is open to public expression is not unlawful “occupation”—protesters cannot unlawfully occupy a space by engaging in expressive activity they have every right to pursue in a space in which they have every right to be….

UT Austin has abdicated its constitutional and state-mandated obligations to protect expressive rights on its campus.

That pretty well sums up Appleby’s letter, but Eduardo has yet more in his article.  He includes one last jab, linking to a video from a mere six months ago, in which UT Vice President for Legal Affairs and General Counsel Amanda Cochran-McCall says “state law in Texas actually allows members of the public just like our university community to come onto campus and use our common outdoor areas for speech activity.”  Eduardo wonders “what changed?”  The answer, as he well knows, is that, like Elon Musk, Greg Abbott is profoundly interested in free speech for anyone who agrees with him; everyone else… well…

Curmie has followed FIRE for a decade or more, and has never seen a more thoroughgoing and incisive excoriation of a university’s willing capitulation to a politician more interested in shutting down opposition to his personal perspectives than in obeying the US Constitution, or indeed Texas law.

Curmie expected no better from Greg Abbott.  He’d hoped for more from UT officials, but is well aware that competent and conscientious university administrators are approximately as plentiful as honest men in Diogenes’ world.

Note: none of the foregoing is intended to take a stance in the ongoing hostilities between Israel and Hamas.  Curmie stands by his earlier commentary; that’s it.  Nor does this essay express any opinions on pro-Palestinian protests on other campuses.  Curmie is a Confucian, remember, Gentle Reader?  Every case is different.