Zwiener Free Speech Bill Excludes ‘Hate Speech’ And Never Defines It

The text as introduced · 1,852 words

By: Zwiener
H.B. No. 2705

A BILL TO BE ENTITLED

AN ACT

relating to the protection of free speech rights at institutions of

higher education, including the prosecution of the offenses of

trespass, damage, and defacement at certain institutions of higher

education, and criminal trespass.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 38, Code of Criminal Procedure, is

amended by adding Article 38.52 to read as follows:

Art. 38.52. EVIDENCE IN PROSECUTION FOR CERTAIN OFFENSES

INVOLVING EXPRESSIVE ACTIVITY AT HIGHER EDUCATION INSTITUTION. (a)

In this article, "expressive activities" has the meaning assigned

by Section 51.9315, Education Code.

(b) This article applies only to the prosecution of an

offense under Section 30.05 or 42.03, Penal Code, that occurred on

the campus of an institution of higher education while the

defendant was engaging in expressive activities.

(c) In the prosecution of an offense described by Subsection

(b), evidence of the following is admissible:

(1) an institution of higher education's resolution of

an alleged violation of the institution's policies on expressive

activities related to the defendant's conduct giving rise to the

offense; and

(2) a resolution by the campus free expression review

board established under Section 51.9316, Education Code, of an

appeal to the review board of an institution of higher education's

resolution described by Subdivision (1).

SECTION 2. Section 51.204, Education Code, is amended by

adding Subsection (c) to read as follows:

(c) It is an affirmative defense to prosecution under this

section that the person:

(1) at the time of the offense, was engaging in

expressive activities, as defined by Section 51.9315; and

(2) was found not to have engaged in any misconduct by

the institution or the campus free expression review board

established under Section 51.9316 with respect to the conduct

giving rise to the offense.

SECTION 3. Section 51.9315(a), Education Code, is amended

by amending Subdivision (2) and adding Subdivision (3-a) to read as

follows:

(2) "Expressive activities" means any speech or

expressive conduct protected by the First Amendment to the United

States Constitution or by Section 8, Article I, Texas Constitution,

and includes assemblies, protests, speeches, the distribution of

written material, the carrying of signs, [ and ] the distribution and

circulation of petitions or digital media, and symbolic expression,

including the wearing of symbolic clothing or accessories . The

term does not include commercial speech or hate speech, including

symbols associated with hate speech .

(3-a) "Review board" means the campus free expression

review board established under Section 51.9316.

SECTION 4. Section 51.9315, Education Code, is amended by

amending Subsections (b), (c), (d), (f), and (h) and adding

Subsections (d-1) and (h-1) to read as follows:

(b) It is the policy of this state and the purpose of this

section to ensure an open, inclusive exchange of ideas fundamental

to higher education and protect the expressive rights of persons

guaranteed by the constitutions of the United States and of this

state by:

(1) recognizing freedom of speech and assembly as

central to the mission of institutions of higher education; and

(2) ensuring that all persons may assemble peaceably

on the campuses of institutions of higher education for expressive

activities, including to listen to or observe the expressive

activities of others.

(c) An institution of higher education shall:

(1) ensure that the common outdoor areas of the

institution's campus are deemed traditional public forums; and

(2) permit any person to engage in expressive

activities in those areas of the institution's campus freely, as

long as the person's conduct:

(A) is not unlawful; and

(B) does not materially and substantially

disrupt the academic instruction of classrooms or administrative

functioning of the institution.

(d) Notwithstanding Subsection (c), an institution of

higher education may adopt a policy that imposes reasonable

restrictions on the time, place, and manner of expressive

activities in the common outdoor areas of the institution's campus

if those restrictions:

(1) are narrowly tailored to serve a significant

institutional interest;

(2) employ clear, published, content-neutral, and

viewpoint-neutral criteria;

(3) provide for ample alternative means of expression;

and

(4) allow members of the university community to

assemble or distribute written , digital, or symbolic material

without a permit or other permission from the institution.

(d-1) A policy adopted under Subsection (d) must be approved

by the review board and amended in accordance with an order of the

review board.

(f) Each institution of higher education shall adopt a

policy detailing students' rights and responsibilities regarding

expressive activities at the institution. The policy must:

(1) allow:

(A) any person to, subject to reasonable

restrictions adopted under Subsection (d), engage in expressive

activities on campus, including by responding to the expressive

activities of others; and

(B) student organizations and faculty to,

subject to Subsection (h), invite speakers to speak on campus;

(2) establish disciplinary sanctions for students,

student organizations, or faculty who unduly interfere with the

expressive activities of others on campus;

(3) include a grievance procedure for addressing

complaints of a violation of this section that includes mechanisms

for redress ;

(4) be approved by a majority vote of the institution's

governing board before final adoption; [ and ]

(5) be posted on the institution's Internet website ;

(6) be approved by the review board; and

(7) be amended in accordance with an order of the

review board .

(h) In determining whether to approve a speaker to speak on

campus or in determining the amount of a fee to be charged for use of

the institution's facilities for purposes of engaging in expressive

activities, an institution of higher education:

(1) may consider only content-neutral and

viewpoint-neutral criteria related to the needs of the event, such

as:

(A) the proposed venue and the expected size of

the audience;

(B) any anticipated need for campus security

based on the factors described by Paragraph (A) and any history of

unprotected or unlawful speech by the speaker or the requesting

student organization or faculty member ;

(C) any necessary accommodations; and

(D) any relevant history of compliance or

noncompliance by the requesting student organization or faculty

member with the institution's policy adopted under Subsection (f)

and any other relevant policies; and

(2) may not consider any anticipated controversy

related to the event.

(h-1) If an institution of higher education charges a fee

for use of the institution's facilities for purposes of engaging in

expressive activities, the institution shall provide to the person

directed to pay the fee an itemized receipt detailing the method for

determining the amount of the fee.

SECTION 5. Subchapter Z, Chapter 51, Education Code, is

amended by adding Sections 51.9316 and 51.9317 to read as follows:

Sec. 51.9316. CAMPUS FREE EXPRESSION REVIEW BOARD. (a) In

this section, "review board" means the campus free expression

review board established under this section.

(b) The campus free expression review board is established

to assess the policies and practices of institutions of higher

education regarding expressive activities under Section 51.9315 to

ensure fairness, viewpoint neutrality, and protection of those

activities.

(c) The review board is composed of the following eight

members:

(1) two members appointed by the most senior member of

the majority party of the Texas House of Representatives;

(2) two members appointed by the most senior member of

the minority party of the Texas House of Representatives;

(3) two members appointed by the most senior member of

the majority party of the Texas State Senate; and

(4) two members appointed by the most senior member of

the minority party of the Texas State Senate.

(d) In appointing members of the review board, the

appointing authorities under Subsection (c) shall coordinate to

ensure that the review board includes legal scholars, legal

professionals, or professionals in the nonprofit sector who

specialize in the First Amendment to the United States Constitution

and free speech protections.

(e) A member of the review board serves a two-year term.

(f) The members of the review board shall elect a

chairperson by majority vote.

(g) A member of the review board is not entitled to

compensation but may be reimbursed for actual and necessary travel

and other expenses incurred in the performance of the member's

duties on the review board.

(h) A person aggrieved by an institution of higher

education's resolution of the grievance procedure under Section

51.9315(f) may appeal that decision to the review board. In

considering the appeal, the review board shall review the content

of the institution's policies adopted under Section 51.9315 and may

require the institution to amend those policies to resolve any

infringements on protected speech or violations of Section 51.9315

that the review board identifies.

(i) The review board shall establish and make available to

institutions of higher education criteria for:

(1) evaluating the viewpoint neutrality, clarity, and

accessibility of policies adopted by an institution of higher

education under Section 51.9315; and

(2) hearing appeals to an institution of higher

education's grievance procedure under Section 51.9315(f).

Sec. 51.9317. SUIT FOR PROTECTED SPEECH VIOLATION. (a) In

this section, "institution of higher education" has the meaning

assigned by Section 61.003.

(b) A person may bring an action for injunctive relief

against an institution of higher education to compel the

institution to comply with the First Amendment to the United States

Constitution, Section 8, Article I, Texas Constitution, or Section

51.9315. On a finding that the institution violated one or more of

those provisions, the court shall award the person compensatory

damages, reasonable attorney fees, and court costs.

(c) An institution of higher education's sovereign immunity

to suit and from liability is waived and abolished to the extent of

liability created under this section.

SECTION 6. Section 30.05, Penal Code, is amended by adding

Subsection (j) to read as follows:

(j) It is an affirmative defense to prosecution under this

section that the actor entered property owned or leased by an

institution of higher education or other higher education

institution and:

(1) at the time of the offense, was engaging in

expressive activities, as defined by Section 51.9315, Education

Code; and

(2) was found not to have engaged in any misconduct by

the institution or the campus free expression review board

established under Section 51.9316, Education Code, with respect to

the conduct giving rise to the offense.

SECTION 7. Article 38.52, Code of Criminal Procedure,

Section 51.204(c), Education Code, and Section 30.05(j), Penal

Code, as added by this Act, apply only to an offense committed on or

after the effective date of this Act. An offense committed before

the effective date of this Act is governed by the law in effect on

the date the offense was committed, and the former law is continued

in effect for that purpose. For purposes of this section, an

offense was committed before the effective date of this Act if any

element of the offense occurred before that date.

SECTION 8. Section 51.9315, Education Code, as amended by

this Act, applies beginning with the 2026-2027 academic year.

SECTION 9. Section 51.9317, Education Code, as added by

this Act, applies only to a cause of action that accrues on or after

the effective date of this Act.

SECTION 10. This Act takes effect September 1, 2025.