What Free Speech Means in Austin Right Now

To me, Austinites have always been ones to speak our minds. But lately, doing that has felt risky, which makes me wonder, has the definition of free speech changed? Today on CityCast, Austin, I'm talking to a First Amendment lawyer about what we really can or cannot say. It's Tuesday, October 14th. I'm Nikki Devon, and this is what Austin's talking about. Hello, I am here today with J.T. Morris, senior supervising attorney for the Foundation for Individual Rights and Expression, or Fire, which I love, and the lead attorney in federal lawsuit challenging the Texas Campus Protection Act. What is up, J.T. How are you? I'm good, Nikki. Thanks for having me on. Thanks for being here. And we are also joined by our executive producer, Yer Ruth Morveq. What's up, Beaver Ruth? Can't keep me out of a free speech conversation? So, okay, Austin is home to lots of people who interact with the public from performers to lawmakers and educators and more. Right here right now in Austin, you know, I think the big question is, should people be limiting what they say in the public sphere, whether it be social media or even on stage as a performer, should we be mindful about what we say? Yeah, I... It's a hard question to answer. I'm a First Amendment attorney, right? And so, you know, I always tell everybody who comes to me, I'm not good, I don't want to live at you and what you're going to say. You should exercise your First Amendment rights, right? We have rights. If we don't exercise them, they're just going to die, right? So it troubles me that we're operating in an environment now where people in Austin and all over Texas have to think about that. And it's a legitimate concern, right, when you have elected officials and lawmakers going on social media and sending out press releases demanding that public school teachers be fired or students be kicked off campus or protesters be arrested for exercising the First Amendment rights. You have to wonder, am I next? But I think the best way to push back against that is exercised the right and the freedoms that the Constitution gives you. Government officials are going to keep acting out if we go silent. And so I would urge everybody, you know, use your political voice, the First Amendment protects it, the Constitution protects it. And, you know, there's folks like me and my colleagues at fire and other, you know, good attorneys and advocates in Texas and all over the country who are going to be there. if the government comes and gives you our time for doing what the Constitution says you have every right to do. That's really good to hear because you do not know this about me, but I am a shit talker. And I like to be able to express myself and I'm not alone in that. But it does feel like a weird time. It really does. Speaking of...

our state government before too. But we also have comedians here. Like I was made me think of Joe Rokin's comedy mothership venue. And like I've been there before and it is pretty crass, you know, and making a death, a death joke. Like I know that sounds crazy in this atmosphere, but like. comedians do stuff like that all the time, you know? So are they at risk of Ken Paxton in the audience listening, you know, and going after people like that? Or is that not the right lane for the target to be on? You know what I mean? It just, I don't know. Or is this just unknown? Yeah. I think it's unknown, right? But I think we're, as you know, we're seeing sort of this expansion of targets. And you can even go back to the Biden administration, right, who kind of. you know, we're pressuring social media companies to remove certain political views during the pandemic. In other, you know, in other events that they did, you know, they were labeling as misinformation, but it was really people's opinions about things. And now you, you know, the political winds have shifted and now you're seeing it. from the Trump administration and state officials too, where they're pressuring companies. You saw it with ABC and Jimmy Kimmel, even before that, pressuring universities like Harvard and Columbia, you know, adopt our certain way of thinking or else we're going to strip your federal funding. You saw some of the executive orders going after big law firms, right? Threatening them, you know, to sue them or come after them if they don't sort of. bow to the administration's wishes. And so, yeah, well, I think when you, when you, when you, right now, what you're seeing is. or institutions in large part caving to political pressure, to censor and silent speakers that are critical of those in power right now. It's a really dangerous and scary thing I think to think about. When you think of institutions like the media and higher education and comedians and the like, They've traditionally been sort of a bulwark against that political pressure, right? There've never been a say to stand up and sort of say, you know, give them, give officials a middle finger and say, you know, here's my First Amendment rights, take them and shove them where the sun doesn't shine. Instead, what you're seeing now is them sort of caving into that pressure. So, you know, while I don't think that, again, the everyday comedian is going to be a target right now.

What concerns me is you get that triple down effect. As the bigger institutions start normalizing this acquiescence to what the government says they have to do if they want to say the government's good crisis and they end up censoring employees or comedians or a talk show hosts or their journalists, that's going to trickle down. And as it becomes more and more normalized from our institutions. then the government gets more power to go after pretty much anybody they don't like. And so it's, I think, you know, my shtick to everybody out there again, stand up for your First Amendment rights, right? Don't let the bully strip you of those. Like the Constitution guarantees it. exercise your freedoms. It feels good to hear you say that because I think that sometimes we get into this mindset of like, oh my God, this is brand new. This has never happened. But to your point, it has happened. It seems so incredibly extreme. You know, it just seems like nobody can say anything. And I think the only thing I can compare it to, and obviously I don't think any of us were around back then is McCarthyism, right? Back in the 50s. But you listen to people who are around in that era, and it's the same sort of tone. I think it's probably... a little bit more, even more aggressive now than it was back then. But I think it's the same culture of fear. If I say something, if I say the wrong thing, is some official going to misconstrue that and hauled me before a hearing or put me in jail? Yeah.

So a new state law called the Campus Protection Act is now in effect and it restricts protests on public university campuses in a few different ways. And this one is kind of scrambling my brain a little bit. I've said this a lot. On the podcast, I went to UT. And when I went to UT. somebody was always protesting something. But there was always someone out in front of the clock tower with a sign. There was just like freely yelling with a megaphone. It would not be a public university if that weren't the case. Exactly. There was always a petition to sign. There was always like a grievance for us to like. Buck against. And so this is really scary that now it's like even on public universities where this is where you're supposed to be learning who you are and how to, you know, what your rights are and what you can do in the world and what you feel and how you can show up. How did we get here? And like, what does this new law do? What does it mean? Yeah. So a little bit of the backstory. You know, back in 2019, the Texas legislature. passed a bill called the Campus Free Speech Act. And what it did is it largely enshrined in state statutory law, you know, the strong First Amendment protections that the Supreme Court has established for student speech on campus. And, you know, told campus administrators, you have to pass policies that ensure that you don't discriminate against students because of their viewpoint, you provide them the same benefits, no matter what ideologies they have. It opened the campus up as traditional public forms. So even members of the public could come on. You think about a place like UT Austin. I mean, you know, I'm up there probably every few months and it feels like part of the city, right? Yeah, it is. Yeah. Yeah. No different from a public park or a sidewalk. And so that was a good thing. That was Republicans protecting that. I mean, Republicans have been in power in Texas for many years. But. Who was responsible for passing that bill? It was the chief sponsors that bill were Republicans. It received great bipartisan support, as it should have, right? We want to your point, Nikki, college is a place where, you know, free speech rights should be at their zenith. I mean, they're little marketplaces of ideas. And not only that, but they're the place where, you know, young adults go to learn how to engage in civic life. We don't want to, to. curtail that and handcuff their ability to do that at our public universities. And of course, the First Amendment protects them there because they're state run and the First Amendment tells, you know, state officials, you can't tell people what to think or how to express themselves. But fast forward, right from 2019, when the legislature passed this great bill, six years. And in this past session, I think in the wake of the campus protests, we saw at UT Austin and UT Dallas and other places across the state in spring 2024, the legislature passed this bill. But it doesn't.

target things like violence or vandalism just by itself, what it does is targets nothing but protected speech. It commands public universities to prohibit nearly all protected speech between 10 p.m. and 8 a.m. So if you're a college student. You can't engage in a quiet political discussion on campus. You know, you can't have a sunrise prayer service. Nothing. Yeah. You know, you can't peacefully hold a sign at 6 a.m. in the morning. Or a vigil? Would a vigil? Would a vigil count? Wow. So, you know, it does other things too. It says during the last two weeks of any academic term or semester, state universities have to prohibit invited speakers. They have to prohibit using amplified sound. You can't even play drums. So, I mean, imagine. What? Yeah. And so one of my favorite examples is you think about spring semester at UT Austin, the end of that is almost always going to overlap with, you know, sort of the meat of the Texas legislature. Yeah. So you couldn't, you know, a political student group. couldn't invite a legislature or legislator to campus to talk about, you know, a hotly contested pending bill. Yeah. Without violating what this law says. And it's your point, Eva, this bill passed with bipartisan support. So it wasn't, you know, this wasn't a Republican versus Democrat thing. This was like. What the fuck? Are you serious? Yeah. So, yeah, my group fire, we filed a lawsuit challenging. the worst parts of this act, mainly those two things I just explained, this sort of ban on overnight speech and this ban on a variety of speech to the last two weeks of campus. And, you know, we have a variety of plaintiffs, I think, that really encapsulate. how extensive and shocking this law's reach is. We have a Christian student group who says, hey, we have the ministers, we need to invite to campus. We have, you know, we have discussions of faith after 10 p.m. We have a student newspaper at UT Dallas. If you know anything about student journalists, they're always working after 10 p.m. That's when they get the meat of their work done. And we have, you know, some student musicians who saying,

We now don't know whether we can put on our shows or rehearse without, you know, violating the policies that our schools have passed because of this bill. So, yeah, wait to see what the judge does with it. You know, we're optimistic, but, you know, it's one of those bills. We just don't understand why it. passed through in the first place, but it did. Why does it even exist? It's college. And look, I mean, yeah, and lawmakers and college administrators, yes, you have an interest in maintaining, you know, campus safety. You want to make sure that students that are sleeping and are studying and taking exams aren't, you know, disrupted in their ability to do that. You want to preserve the academic mission of the university. But banning all speech 10 hours a day, saying you can't have invited speakers or play instruments the last two weeks of any term, that's not the way to meet those goals at all. Also, if you're that concerned about safety and you're that concerned about... you know, keeping, making sure other students can sleep at night. Maybe you should start with all of the other extraneous noise, the parties, the frat parties, the keggers, all that other shit. Yeah, that's what if you held a protest that was just a frat party? Yeah, like, what are you talking about? What are they talking about? It's ridiculous.

Okay, now one thing it also prohibits is people who aren't affiliated with the university from being present at protests. And you mentioned this earlier and it's so true. UT feels like a part of the city. It just feels like another, literally I was driving by the other day and I was like, oh, I should go take a walk around campus because that is how much a part of the city it feels. It does not feel like it is a separate. place, especially since it is in the, it's like smack dab in the middle of the city. So like prohibiting people who aren't affiliated with the university for being present at protests, like we do have other places like the Capitol or people who aren't students or faculty can protest. Yes, sure. But if you're trying to protest something that has to do with the rights of students and has to do with the way the university is behaving, it makes sense to me. If you're lost tonight, you will protest in that place. But I don't know. Am I wrong? Like what? Like this just seems like a bad thing to me. I don't think you're wrong. And again, it's kind of just the blanket approach this law takes to everything, right? There's no sort of exceptions. You know, there's no presumption, you know, to protect peaceful protests. It's just. unless you're the student faculty or staff, you have no right to express yourself at a public university. And again, especially for an urban university like UT Austin, where, you know, if you're traversing, you know, from Guadalupe to I-35 between, you know, Martin Luther King and 20-something street, I mean, you're probably going to intersect with the university at some point, right? So, yeah, I think that's problematic. And it's just not protesters, right? I mean, you have, for example, voter registrars who want to go on campus and help students get registered to vote. We've heard stories about certain universities saying, too bad, you can't come here anymore. So, you know, you have, and now sort of you have this sort of anti-democratic function that's imperiling students' ability to. understand their voting rights and get signed up and go exercise the rights of the polling place. I'm curious to see what happens this week. When there will be a protest testing this, there's a UT protest planned against the idea of, you know, UT going along with the funding. option that Donald Trump proposed that like UT is on a list of nine universities that if they agree to certain things, they can get special access to funding from the president. And I think the president of the university has said, yeah, cool, thank you so much. Great opportunity. And maybe students have a different idea. So I guess we'll get, we'll get a test case soon. Maybe. This is kind of also happening. Like at the same time, you know, the capital last month.

you know, the leaders established committees in the House and the Senate to focus on, again, I quote, civil discourse and freedom of speech and higher education. And it just, it. Sorry, it just feels like once again they've just caught onto one thing like a dog with a bone and they can't let it go. What are these subcommittees for? And like, why does it feel? It feels very unusual to me that lawmakers are this involved in free speech on higher education campuses. Like this, this actually does feel just a little whack ado to me. Well, you know, and I don't have a lot of information. I know they, you know, I know they were put together. They said they're going to, you know, talk about and investigate free speech on the state's college campuses. But I don't know what the timing is going to be. I'm not sure what they plan to discuss. One would hope they sort of look back and say, oops, we, you know, we messed up in some ways. Let's get back to. constitutional principles and let's make sure that, you know, as state officials and let's make sure our public university boards and presidents and administrators are upholding the First Amendment to college campuses. I'm hopeful they'll do that. Yeah. But I just don't know what their plan is. You know, I'd have to speculate otherwise. As opposed to like coming up with lists, like McCarthy-era kind of lists that are people that they should go after. Certainly hope that's not the guess. I've been having a lot of conversations lately about free speech, especially, you know, in the aftermath of Charlie Kirk. Right. And I've been having these conversations about like whether or not. you know, the vile things that he was saying is protected or it's okay as far as free speech is concerned. And if that was okay, why isn't people's response to his death protected, right? So I've been having these really hard conversations with friends and people around. And I think that, you know, I am one of those people that. Charlie Kirk was well within his right to say whatever vile, disgusting shit he wanted to say. That is a part of being in the American. That's a part of being American. You say some things that I find terrible and vile and awful. And in response, I can say whatever I want to say. It feels like to me that is how this country works. That is, that's it. Now, do I think we should have a statue of him at our capital? Absolutely not. But. I do believe that he was well within his right to say the things that he said, however terrible I think they are. My point is, it has, all of this has started this kind of push and pull about what is free speech? And should it be determined by whether or not it upsets people? And so I'm just curious, like, especially since you're like actively going through.

litigation about free speech, how do you approach those kinds of, how do you approach the definition of free speech? Like, because I feel like. those waters are being muddied now at this point where it's okay for certain people to say things, but other people cannot say things. If you don't like it, you can't say it. Like, what is your definition of free speech? It's a good question. So let me take sort of their third kind of a two-headed approach to this. So one is sort of the legal protections, right? That's the First Amendment. The First Amendment says, The government can't interfere absent of really compelling interest with what we think, what we say, how we express ourselves. So even if you say vile things, even if you say horrible things about the governor or your local mayor, your local city councilman, the first member protects you, right? Political discourse is, I mean, it's so fundamental to our American way of life, especially heated, inflammatory, and sometimes political discourse that offends half the country. It's your right to say in the First Amendment protects that. And then there's sort of, I think, the normative and social cultural side of free speech where I think... We're really struggling as a country with today and I think for exactly the the reasons you put out there It's this this sort of cognitive dissidence where well if the people who I support or the views I support are being shut down That's bad, right? Free speech means I get to say the things I like to say and express the views I believe in. When it's on the, you know, the shoes on the other foot, to take your example from the Charlie Kirk murder and sort of the fallout from that, when people are sort of saying, well, yeah, I'm glad he died or, you know, things along that line. That's free speech too. You might not like it. You might find it vile. But as a culture that, you know, traditionally, we are open to, you know, a robust and rough and tumble discourse because we are searching for the truth. We're trying to find what ideas are right. We're trying to, you know, to kind of come together and to advance society in that way. You have to tolerate the person's right to express that. You don't have to tolerate the view because it's your right to tell them they're an idiot if you disagree with them, right? Exactly, yeah. But you can't shut them down and you can't enlist the government to shut them down. And so, you know, free speech, I think it, and I'm paraphrasing a little bit here, is Justice Holmes from the, you know, the early 20th century. Essentially, you know, free speech is really.

tolerating the thoughts and the speech that we hate and it really is and you know for me personally i think there's the legal there's the cultural side to it there's a human dignity side to it too and i i take this probably from you know being married for over a decade like people want to be heard when you stifle people's ability to express themselves it builds resentment and that resentment fosters you know, really bad things, right? It sends speech to the, you know, the back rooms of bars and dark alleys. And to me, I'd rather have people express themselves, one, so they don't, that resentment doesn't build, but two, so we know what's on people's minds. Like, I'd rather know what people are thinking. as maybe I agree with it, or I might find it reprehensible, but I know it's out there. Or can you believe people think this way? Yeah. Yeah, but at least you know, at least you know. If it's reprehensible, then guess what? We can engage in counter speech and, you know, explain to the public, that's why this is reprehensible, reject those ideas and follow the right thing, right? But silencing people is never the answer, right? Gentrism is never the answer to solving anything. And I think history shows us that, right? I mean, you go through... You know, the battles of, you know, between the Roman Catholic Church and the upstart Protestant Church and, you know, what happened with in Nazi Germany when sort of the, you know, the Weimar Republic tried to shut them down. And then they turn around, they get power and they use those laws to censor everybody who doesn't agree with them. And obviously, we all know, do much worse than that. I love that you say like basically use it or lose it though. Like that's kind of the message going forward. I think at least right now, like don't give up. Don't silence yourself. Just be out of fear of where this is going. I think the easier and the more normal we make it for government officials to silence Americans, the easier it's going to get for us. To lose those rights. To be silenced. Yeah. JT. Thank you so much for coming on and having a conversation with us. This has been great. It's been a long time since I've gotten this like fired up internally by conversation. So I really appreciate you taking the time being here today. I really do. No, it's absolutely been a pleasure and happy to be on. Thank you guys so much.

That's all for today here on CityCast Austin. You can find links to Fires Work in our show notes. And if you enjoyed the show, why not tell a friend, write the show, leave us the review, and subscribe to our Hey Austin newsletter. But, you know, if you really, really love us and you love what we do and you love listening to us, support us by becoming a neighbor today at membership.cass.fm. We'll be back tomorrow morning with more news from around the city. Bye y'all.