Texas Public University’s restrictions on anti-Israel speech likely violate the First Amendment

(A) an essential issue, the Court finds the incorporation of this specific definition of anti-Semitism to be point-of-view discrimination. Generally, the inclusion of the word “anti-Semitism” in speech policies, perhaps in the context of protecting students from discrimination and harassment, is not inherently a violation of the First Amendment. The defendants want to see the speech policies in this vacuum, arguing that the revised policies do not actually prohibit any specific speech. But here, the speech policies do not leave “anti-Semitism” open to constitutional definitions and interpretations because GA-44 mandated a specific definition. This definition, by incorporating the IHRA examples, labels “calling the State of Israel a racist endeavor” and “making comparisons between contemporary Israeli politics to that of the Nazis” as anti-Semitic.. And students can be punished for anti-Semitic speech under revised speech policies. Plaintiffs follow this thread, reasonably understand that intended speech is now punishable under the revised policies, and hesitate to engage in such expression. Because of this, the (Court) finds that the revised policies are intertwined with the GA-44 and IHRA examples, which identify content-specific expressions such as the State of Israel being a racist endeavor or drawing comparisons between Israel and the Nazis. By connecting to these examples, policies make that speech punishable, thus chilling it.

Now, TinHis framework allows schools to ban certain expressions of certain viewpoints, but only after demonstrating that the expression would cause a “substantial disruption” of school activities. The school official “must be able to show that his action was motivated by something more than a simple desire to avoid the discomfort and inconvenience that always accompany an unpopular viewpoint.” In addition, Healy v. James (1972), a university-level First Amendment case, directs that the First Amendment analysis be made “in light of the special characteristics of the environment” in the particular case. Supreme Court in Healy found that the need for this circumstances-specific inquiry was “clarified in Tin.”

So assessing what might be a “substantial disturbance” 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 school environment may not be a substantial disruption in a university environment; what can disrupt a secondary school could even be fundamental to universities. The Supreme Court has long recognized that universities are “vital centers for the intellectual life of the Nation,” to the extent that “the danger . . . of chilling individual thought and expression” “is especially real in the academic environment, where the state acts against a the background and tradition of thought and experiment which lies at the heart of our intellectual and philosophical tradition.” Finally, “(the Supreme Court’s) precedents leave no room for the view that . . . the protections of the First Amendment should apply less forcefully on college campuses than in the community at large.” Healy.

Here, the characteristic of universities as an environment for vigorous debate is decisive for the outcome. Revised university policies chill a kind of expression that is a hallmark of university activity, and even under TinThe Court finds that Defendants cannot demonstrate that this phrase sufficiently rises to the level of “substantial disruption” at the university level. On the contrary, this kind of passionate political debate is essential in universities, where students form their worldview as adults. Restrictions on speech at the secondary school level are justified in part by the schools acting loco parentis to children, but universities do not fulfill the same function and even do their mature students a disservice by banning expressions that some may find objectionable.

Defendants point to the spring protests, arguing that those events are evidence that this speech is a substantial disruption. But the Court disagreed, finding the ban on that expression more akin to “a simple desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” For example, a female student might calmly express that she finds Israel’s policies similar to those of the Nazis while sitting in a classroom with her hands folded in her lap, and this expression could hardly be said to be a itself substantial disturbance. Yet under UT Austin’s revised policy, for example, her speech is defined as anti-Semitism and could be punished as “harassment … committed because of anti-Semitism.” And while some may find her speech distasteful, offensive, or even inflammatory, it is “the basic principle underlying the First Amendment … that the government cannot prohibit the expression of an idea simply because society considers the idea itself offensive or objectionable”.

If that view is expressed in a way that genuinely amounts to a substantial disruption, the disruption can be addressed by content-, time-, manner-, and place-neutral restrictions such as those asserted by the defendants firmly that they applied them in the spring. protests, making the ban on this specific expression not only unconstitutional, but unnecessary. As the Supreme Court said in Healy“(a) college classroom, with its surroundings, is uniquely the “marketplace of ideas,” and we break no new constitutional ground in reaffirming this Nation’s commitment to protecting academic freedom.”

In conclusion, the Court finds that plaintiffs are likely to prevail on their claim, even under Tinthat university policies consistent with GA-44 impose impermissible viewpoint discrimination that intimidates speech in violation of the First Amendment.

The plaintiffs’ proposed order requests the Court to order the defendants from:

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

1. forbid students to use the phrase from the river to the sea, Palestine will be free;
2. define as bigoted the typical criticisms and historical comparisons students make of foreign countries when those criticisms are made of Israel;
3. single out for punishment the Students for Justice in Palestine, the Palestine Solidarity Committee or any organization that criticizes Israel and supports Palestinian rights;

and order that:

Defendant Taylor Eighmy is preliminarily enjoined from enforcing the school’s policy prohibiting students from chanting or displaying on signs the slogan From River to Sea, Palestine Shall Be Free.

Defendant Rene Khator is preliminarily enjoined from implementing its new policies that seek to comply with GA-44, including the changes made to UH Systems’ free speech policies by the Board of Regents on May 17.

… Overall, the Court finds the injunctive relief requested by plaintiffs to be excessive. The Court recognizes that if the claimants are ultimately successful, the Court will have to award reparations. Appropriate relief will focus on removing the connection between university policies, the GA-44 definition of anti-Semitism, and the IHRA’s examples of anti-Semitism, because it is this connection that frightens plaintiffs’ speech. For example, particularly if evidence emerges that the policies are implemented in accordance with the IHRA’s examples, appropriate relief may require defendants to punish speech under the guidance of the IHRA’s examples. The proposed ordinance is not strictly tailored to the specific definition and examples of anti-Semitism embedded in the policies. For example, the revised UH policy does not identify, even by reference, the phrase “river to sea.” And, plaintiffs may violate valid university policies in a way that requires them to be “single(d) for punishment.” Because a preliminary injunction should be the exception rather than the rule, and the decision is discretionary, the Court declines to exercise its discretion to make its own order at this time and does not wish to err by entering the excessive order proposed.