Victory for Free Speech on Campus: Federal Court Strikes Down Gun Rights Protest Restrictions at Tarrant County College

By March 16, 2010

As announced in our press release earlier this afternoon, we received word late yesterday that a federal district court found restrictions on symbolic speech on campus maintained by Tarrant County College (TCC) to be unconstitutional. The ruling is a striking victory for the First Amendment on campus.

In his decision, U.S. District Judge Terry R. Means found that TCC’s reliance on a policy prohibiting "disruptive activities" to restrict students Clayton Smith and John Schwertz from holding an "empty holster" protest violated the First Amendment. Judge Means further ruled that TCC’s sweeping prohibition on "cosponsorship," which forbade students and faculty from holding campus events in association with any "off-campus person or organization," prevented TCC students "from speaking on campus on issues of any social importance" and was therefore "overly broad" and "unconstitutional on its face."

The lawsuit was filed on November 4, 2009, by Fort Worth attorney Karin Cagle in cooperation with FIRE and the American Civil Liberties Union (ACLU) of Texas. On November 6, 2009, Judge Means issued a temporary restraining order prohibiting TCC from quarantining protected speech to the school’s tiny "free speech zone," holding that continued operation of the free speech zone would result in "immediate and irreparable injury" to students’ free speech rights.

In December 2009, following the district court’s order, TCC voluntarily revised several policies challenged by the lawsuit, including the free speech zone policy. TCC also introduced the unconstitutional ban on cosponsorship in its December revisions. The students’ lawsuit was amended to include a challenge both to this new policy and to ask the court to invalidate the former free speech zone policy on the ground that TCC would otherwise be able to reinstate it following the conclusion of the lawsuit. 

While Judge Means struck down the cosponsorship policy, he also held that the challenge to the free speech zone was moot because there was no indication TCC would revert to the discredited policy. And while Judge Means held that because both Smith and Schwertz are students they didn’t have standing to bring claims against policies regulating the speech rights of non-student campus visitors, he nevertheless strongly implied that if challenged by a non-student, the policies "seem quite broad and potentially susceptible to challenge for overbreadth or vagueness."

After the lawsuit was filed, the state of free speech at TCC started improving almost immediately. Following the district court’s issuance of a temporary restraining order just two days after the complaint was filed, Smith and Schwertz successfully engaged in a November protest for their cause, including the wearing of empty holsters on most of the campus. In yesterday’s opinion, Judge Means pointed out that "[c]ontroversial symbolic speech, with the potential to evoke a strong and possibly violent emotional response from those who see it has time and again been held protected, even in nonpublic forums, including the classroom." Further, Judge Means dismissed as unfounded TCC’s concerns that the symbolic protest might disrupt the campus, citing Smith’s and Schwertz’s peaceful November 2009 protest as proof to the contrary and noting that "even those with whom they spoke that disagreed with SCCC’s views seemed to appreciate the fact that Smith and Schwertz were exercising their right to speech."

As Torch readers know well, in the past two years, TCC has twice prohibited students from participating in the SCCC protest on campus. FIRE’s involvement in the case began shortly after March 2008, when TCC student Brett Poulos e-mailed TCC South Campus President Ernest L. Thomas to describe the empty holster protest. In an April 10 response, Juan Garcia, Vice President for Student Development, "granted" Poulos’ request to stage a protest on the South Campus, but Garcia changed the fundamental nature of the protest by prohibiting the protesters from wearing empty holsters anywhere on the South Campus, even in the designated free speech zone. The South Campus free speech zone, according to Poulos, is an elevated, circular concrete platform about 12 feet across. In a later meeting, Garcia told Poulos that TCC would take adverse action if SCCC members wore empty holsters anywhere, strayed beyond the school’s free speech zone during their holster-less protest, or even wore T-shirts advocating "violence" or displaying "offensive" material. Poulos came to FIRE for help. 

FIRE wrote to President Thomas on April 24, 2008, explaining that TCC’s free speech zone represented a serious threat to liberty on campus and that FIRE has defeated similar free speech zones on campuses across the nation, including the University of North Carolina at Greensboro, West Virginia University, University of Nevada at Reno, Citrus College in California, and Texas Tech University. A TCC administrator responded on May 20, 2008, informing FIRE that the university would not reverse its decision. Poulos’ protest did not take place.

Similarly, on April 10, 2009, Clayton Smith e-mailed TCC administrators to inform the college of his intent to hold an "empty holster protest" on TCC’s Northeast Campus in coordination with SCCC’s nationwide protests from April 20-24. On April 16, however, a TCC administrator e-mailed Smith, prohibiting Smith and other protesters from wearing empty gun holsters on campus, even in the free speech zone, not only during the protest but also at any other time. Smith was informed that students were not allowed to hand out flyers on campus. Like Poulos, Smith came to FIRE for help. Working in conjunction with the ACLU of Texas, FIRE aided Smith in finding counsel. I filed a declaration with the court in support of the suit, detailing FIRE’s efforts at TCC and the college’s refusal to recognize the First Amendment rights of its students, and the court’s opinion today takes note early on of TCC’s repeated censorship.

It’s taken almost exactly two years since FIRE’s first involvement with the case, but all of us here at FIRE are very pleased that yesterday’s ruling vindicates the points FIRE has been making right from our first update about censorship at TCC. As Robert wrote then: 

So why the prohibition on holsters? An empty holster is merely a piece of leather. By itself, it is likely to be dangerous only if you were to hit someone with it. Other articles of clothing or personal items that college students are likely have on their person, such as books or backpacks, are inherently far more dangerous. Therefore, the objection to the holsters cannot be based in a real concern for safety; rather, it is based on what ideal administrators believe the empty holsters are meant to represent.

Interestingly, Robert’s basic pointthat the safety rationale doesn’t justify restricting protected speech in this instanceis echoed in the court’s opinion:

In any event, there was no evidence linking empty-holster protests to an increased likelihood of a shooting on campus. [TCC Interim Chancellor Dr. Erma] Hadley testified that she feared that "some student [would] show up on campus with a gun in the holster." (Tr. Trans. Vol. III, p.30.) But if anything, that would be the exact opposite effect of the empty-holster protest. SCCC members wear empty holsters to highlight the fact that they are not armed. And there is simply no logical force behind such a fear; if a person wished to bring a firearm onto campus undetected, he likely would not wear it in a holster, exposed for all to see….

TCC’s decision to prohibit students from protesting the status of the law and school policy on concealed firearms by wearing empty holsters to class rests on an "undifferentiated fear or apprehension of disturbance." See Tinker, 393 U.S. at 508. This, of course, "is not enough to overcome the right to freedom of expression." Id. "Much nondisruptive speechsuch as the wearing of a T-shirt or button that contains a political message. . . is still protected speech even in a nonpublic forum." Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987). Controversial symbolic speech, with the potential to evoke a strong and possibly violent emotional response from those who see it has time and again been held protected, even in nonpublic forums, including the classroom. [Citations omitted; emphasis in bold added.]

I urge FIRE supporters to read the opinion; it’s an interesting one.

Finally, I’d like to thank Brett Poulos, Clayton Smith, and John Schwertz each for standing up for the First Amendment, contacting FIRE, and letting us know that they were being censored on their campus. The only way FIRE can help is if we’re aware of the problem, and filing a civil rights lawsuit against one’s school takes real courage. Today, all students at TCC enjoy the free speech rights to which they’re legally entitled because of these students’ willingness to speak up.

I’d also very much like to thank Karin Cagle and the excellent staff at the ACLU-TX for their hard work on this case, and congratulate them on this victory.

Finally, I’m pleased to chalk up the latest win in FIRE’s Speech Code Litigation Project–an initiative working to dismantle unconstitutional speech codes on public university campuses–which has won crucial victories at Shippensburg University in Pennsylvania, Texas Tech University, the State University of New York at Brockport, Citrus College in California, San Francisco State University and the California State University System, Temple University, and now Tarrant County College.

We’ll have more analysis of this case in the days to come, so stay tuned.

Schools: Tarrant County College Cases: Tarrant County College Bans Symbolic ‘Empty Holster’ Protest