The Common Law

I’m watching some of the protesters at the University of Texas get hauled off to jail and I’m totally confused. Don’t they have an absolute right to protest peacefully? How is that a crime?

Pro-Palestinian protests have erupted on college campuses across the country over the past few weeks. In some instances, including here at UT-Austin, protesters have been arrested and charged with crimes. These arrests have left many uncertain about whether UT has the right to stop protests on campus.

The First Amendment protects the fundamental right to assemble and express our views through protest. The government should not restrict speech in an effort to promote the government’s preferred, official viewpoint.

The First Amendment right to assemble and protest is not absolute. Longstanding First Amendment case law allows the government to place certain limitations on the right to assemble and protest if it can demonstrate an adequate justification for doing so. For example, while courts have held that the government cannot regulate the contents of the speech, it can place reasonable time, place, or manner restrictions on speech in the name of public safety. Furthering this idea, in 2019, Texas passed a law allowing public protests, even by non-students, at outdoor spaces at public universities, as long as the protesters’ conduct is lawful, and it does not disrupt the functioning of the university.

Striking the balance between the government’s ability to place some limitations on free speech and the protesters’ individual rights has challenged governments, police, and the courts for decades (the Vietnam War and Black Lives Matter protests are two examples). The current UT protests, and the subsequent arrests, represent the ongoing tension between the inherent right to peacefully protest and the government’s right to place certain limitations on those protests.

Protesters arrested at UT have been charged with various crimes, including trespass, disorderly conduct, obstructing a passageway, or even assault. Whether these arrests are lawful is a matter of strong debate, even among lawyers.

There is some amount of prosecutorial discretion with what happens after the arrest. For example, Travis County Attorney Delia Garza dismissed some of these charges already due to lack of probable cause.