Texas SB 2972 and the Constitutional Limits of Criminalizing Campus Protest

Introduction

The First Amendment has long protected the right of individuals to engage in expressive activity on public university campuses. Public colleges and universities have traditionally been treated as limited public forums or, in certain outdoor areas, as traditional public forums where the government's authority to restrict speech is substantially constrained. Texas Senate Bill 2972, known as the Campus Protection Act, represents one of the most aggressive legislative efforts to restrict campus expression in recent memory. The law was passed largely in response to pro-Palestinian protests that swept college campuses across the country in 2024, including at the University of Texas at Austin where police arrested more than 100 people at one demonstration. Republican Lieutenant Governor Dan Patrick called the bill a top legislative priority. This article examines the constitutional infirmities of SB 2972 and argues that the law fails to satisfy the heightened scrutiny applicable to restrictions on protected speech in public forum spaces.

Background and Legislative History

SB 2972 was authored by State Senator Brandon Creighton of Conroe, who later resigned from the Texas Senate on October 2, 2025, to become chancellor of the Texas Tech University System. The bill passed the Texas Senate with preliminary approval by a vote of 21-10. Governor Abbott signed the bill on June 20, 2025, and it took effect on September 1, 2025.

The law amends Section 51.9315 of the Texas Education Code and effectively reverses protections established by Senate Bill 18, passed in 2019, which had mandated that all outdoor spaces on state universities be designated as open forums for public speech. SB 18 had been championed by Republican lawmakers who objected to colleges canceling appearances by conservative speakers.

SB 2972 restricts expressive activity rights to enrolled students and employees, eliminating the general public's access to outdoor campus spaces as open forums. The law gives governing boards the power to designate which areas on campus are traditional public forums and allows restrictions in those areas so long as they are deemed reasonable in light of the area's purpose. The law also prohibits the use of microphones or amplification devices during class hours or when sound would intimidate others or interfere with campus operations, bans encampments and tents, bars protesters from wearing masks or facial coverings to avoid identification, prohibits replacing an institution's U.S. flag with another nation's or organization's flag, and imposes a blanket ban on all expressive activities between 10 p.m. and 8 a.m. Students and employees at a campus protest are required to provide proof of their identity and status when asked by a university official or law enforcement officer.

Because the legislation defines expressive activities broadly as anything protected under the First Amendment or the analogous section of the Texas Constitution, free speech experts warned that the law would prohibit essentially all forms of expression between those hours, from wearing a political hat to engaging in a heated debate in the dining hall.

The FIRE Lawsuit and Preliminary Injunction

The Foundation for Individual Rights and Expression filed suit against the University of Texas System in federal court on September 3, 2025, on behalf of student and campus groups including two music clubs, a religious organization, a political advocacy group, and an independent student newspaper. FIRE attorneys argued the law violated the First and Fourteenth Amendments because it banned protected expression from students and employees during overnight hours and imposed overbroad restrictions on speech.

On October 14, 2025, U.S. District Judge David A. Ezra issued a 52-page preliminary injunction halting enforcement of the overnight expression ban and limits on speakers, amplified sounds, and drums during the final two weeks of the semester. Judge Ezra found that the student groups were likely to succeed on their claims that SB 2972 violates the First Amendment and would be irreparably harmed without relief.

The court ruled that the law was content-based both on its face and in its purpose, noting its origins in response to specific political protests and statements by state leaders who labeled demonstrations as antisemitic. This, the court found, reflected disagreement with the message conveyed, making the statute subject to strict scrutiny. The court also held that the blanket ban on expressive activities after dark was both overinclusive and underinclusive. While commercial activity could continue overnight on campus, expressive activity could not, even if peaceful and non-disruptive. The court found the state had failed to demonstrate any evidence that banning all expression between 10 p.m. and 8 a.m. was necessary to maintain campus order.

Equally problematic were the end-of-term restrictions, which applied for up to 98 days per academic year at some campuses. Judge Ezra wrote that the court could not trust the universities to enforce their policies in a constitutional way while plaintiffs were left in a state of uncertainty that chilled their speech.

Constitutional Analysis

The central constitutional question is whether SB 2972 constitutes a valid time, place, and manner regulation or an impermissible content-based restriction on speech. Under the Supreme Court's framework in Ward v. Rock Against Racism (1989), content-neutral time, place, and manner restrictions on speech in a public forum are permissible if they are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication.

Judge Ezra's finding that SB 2972 is content-based, not content-neutral, subjects the law to strict scrutiny, which requires the government to prove the restriction is narrowly tailored to serve a compelling governmental interest. The law's legislative history, rooted in opposition to the content of pro-Palestinian protests, strongly supports this characterization. The overnight ban is particularly vulnerable because it does not distinguish between disruptive and non-disruptive expression. A student wearing a political button while walking to a late-night study session would technically violate the law. A religious student organization holding a prayer meeting after 10 p.m. would be engaging in prohibited expressive activity.

The identification requirement raises separate concerns about surveillance and chilling effects on speech. Requiring protesters to identify themselves to law enforcement as a condition of exercising First Amendment rights has the potential to deter lawful expression, particularly by students who fear retaliation.

The case also implicates the Tinker v. Des Moines standard and its application, or inapplicability, at the university level. While Tinker's substantial disruption test governs some K-12 student speech cases, courts have recognized that college students are adults who generally enjoy broader First Amendment protections than minors in secondary schools.

The Appeal and Path Forward

The UT System filed a notice of appeal on November 4, 2025. Senator Creighton, the bill's author, stated that the ruling represents only a temporary stay by one judge and expressed confidence the law will ultimately be upheld. The appeal to the Fifth Circuit will require the appellate court to assess whether Judge Ezra correctly applied strict scrutiny and whether the law can be sustained as a content-neutral time, place, and manner regulation.

The outcome will have implications far beyond Texas. Similar restrictions have been enacted or proposed in other states in response to campus protests. If the Fifth Circuit upholds the injunction, it may signal constitutional limits on legislative efforts to restrict campus speech in response to politically disfavored protests. If the court reverses, it could embolden other state legislatures to adopt similarly broad restrictions on campus expression.

Conclusion

SB 2972 represents a fundamental tension between legislative authority to regulate campus safety and the constitutional guarantee of free expression. The law's sweeping scope, its origins in opposition to specific protest content, and its failure to distinguish between disruptive and non-disruptive activity all suggest it cannot survive rigorous judicial review. The appellate proceedings will provide important guidance on the constitutional limits of state power to regulate speech at public universities.