Did Texas Police Violate First Amendment Rights of Pro-Palestine Protesters?

A UT professor and expert on freedom of expression weighs in on the controversial arrests of 57 individuals, including a journalist, at a campus demonstration.

In a statement to the Observer, a UT-Austin spokesperson said that about half of those arrested were unaffiliated with the university. “Thirteen pro-Palestinian free speech events have taken place at the University largely without incident since October,” wrote Brian Davis, the spokesperson. “In contrast, this one in particular expressed an intent to disrupt the campus and directed participants to break Institutional Rules and occupy the University.”

A Texas Department of Public Safety (DPS) spokesperson emailed the Observer a statement Thursday acknowledging that DPS had arrested a journalist and saying the case had been turned over to DPS’ Criminal Investigations Division. The spokesperson, Press Secretary Sheridan Nolen, also said the journalist was “seen hitting a DPS Trooper in front of him with his camera”—while the journalist has said he was pushed and did not hit an officer.

Dr. Amy Sanders is a tenured associate professor at UT-Austin, a licensed attorney, and journalist. She has taught courses on media law, journalism ethics, and global protections on speech, press, and protest. In the aftermath of Wednesday’s arrests, Sanders spoke with the Observer about free speech protections and the First Amendment.

So let’s not even talk about the First Amendment first. If you look at UT’s own policy regarding freedom of expression, they open up public outdoor common areas on campus for these kinds of activities. UT actually has a policy that says assemblies of the public are permitted in outdoor campus spaces.

When expressive activities get out of hand and turn violent, or when people begin engaging in speech that is not protected by the First Amendment—true threats, fighting words—the university has the right to step in and stop that kind of protest. I have seen nothing to suggest that is what occurred yesterday.

The First Amendment does not protect any kind of physical action that would harm someone’s safety. You have no First Amendment right to push, shove, kick, hit other people. But, often in the case of peaceful protests, like we saw yesterday, there is of course pushing, and people are moving. Oftentimes, police exercise restraint in allowing some of this movement to happen, understanding that you can be in a crowd and come into contact with someone without intending to hurt them.

That arrest in my opinion is absolutely unlawful. Police obviously have the right to ask journalists to move to keep them safe. But from the video I have seen, he was doing nothing unlawful, other than engaging in the practice of journalism. The First Amendment protects journalists who are in the process of covering a news story on public property.

(Note: The Observer was present on campus when one of the dispersal orders was read out around 6:15 p.m. Wednesday. The crowd of protestors moved off campus, and then police left en masse—and protestors promptly returned to UT’s South Lawn in the heart of campus where many of the arrests took place, according to videos posted on social media by local journalists. The group continued to peacefully protest, while a couple drones buzzed overhead.)