Texas Tech faculty sue over vague speech restrictions, 277 courses altered

Nine years ago this summer, the Supreme Court ruled unanimously in my favor in Matal v. Tam—the case about my band's trademark that most people remember as a fight over offensive speech. It wasn't, really. The government never argued I couldn't call my band The Slants. It argued that officials, not I, got to decide what the name meant. The Court rejected that claim to interpretive authority: "Speech may not be banned on the ground that it expresses ideas that offend."

That fight didn't end in 2017. Once again, public officials are trying to restrict speech protected by the First Amendment by implementing vague standards of meaning.

The Texas Tech Directives

Faculty at the public Texas Tech University System have been directed to review their course materials, syllabi, and curricula and to make "timely adjustments where needed." Instructors must:

• Avoid "advocacy/promotion" of certain viewpoints
• Keep instruction "neutral"
• Refrain from "compelling students to adopt a particular belief"

Materials touching on race, gender identity, or sexual orientation must, in some cases, be submitted for approval before reaching a classroom. There will be a "system-wide phase-out" of programs "centered on" sexual orientation and gender identity, and future graduate theses on those topics face new restrictions.

Legal Challenge

Faculty groups sued the system on July 8, arguing these directives violate:

• The First Amendment's Free Speech Clause
• The 14th Amendment's protections against vague standards and racial discrimination

The lawsuit also argues the directives chill speech, because professors "cannot reasonably make sense of what is and is not prohibited." The university maintains the policies are lawful.

The Chilling Effect in Practice

A Faculty Senate survey at Texas Tech's Lubbock campus found that professors altered, or were asked to alter, material in 277 courses. (That claim is refuted by the university, which questioned the survey's methods and total of altered courses.)

Key findings from the survey:

• Around half of faculty surveyed changed content on their own out of concern over the memos
• Roughly a quarter said administrators asked them to change content
• More than half said they were job-hunting elsewhere because of the restrictions

Whether or not you think the directives constitute censorship, faculty are behaving as though their speech is constrained: rewriting syllabi, dropping readings, steering clear of topics. That behavior is the chilling effect. Public universities don't need to ban speech. They only need faculty to wonder, in advance, whether their words will be interpreted as a violation.

A Familiar Mechanism

That's the same mechanism I encountered at the U.S. Patent and Trademark Office. Those officials never explicitly said I couldn't use the name, just that I couldn't register it as a trademark. They claimed the authority to interpret it, to decide that "The Slants," regardless of my stated intent or my community's actual reception of it, disparaged people of Asian descent. When the government becomes the editor of meaning, everyone downstream behaves accordingly.

The Vagueness Doctrine

The Supreme Court understood this in 2017. The vagueness doctrine exists precisely because speech-restricting standards that are undefined distort behavior even when no one is ever formally punished. Texas Tech's "advocacy" and "centered on" standards are functionally vague: Professors must guess at what runs afoul of these standards, and rational actors guess conservatively. The Faculty Senate survey captured that dynamic in real numbers.

Teaching historical facts—that slavery existed, that Japanese Americans were incarcerated during World War II, that LGBTQ+ people have faced legal persecution, or that health disparities exist along racial lines—doesn't automatically endorse a political position. Once academic institutions impose vague standards, the line between teaching and advocacy becomes impossible to discern, and self-censorship becomes the rational choice.