While praising Charlie Kirk’s commitment to free speech, Texas leaders move to punish students celebrating his death

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Last week, as Texas State students gathered to mourn the assassination of conservative political activist Charlie Kirk, another student began taunting them.

“Hi, my name is Charlie Kirk,” he announced, before collapsing to the ground, pretending to be shot. As he walked away, someone on video can be heard saying, “you’re going to get expelled, dude.”

Gov. Greg Abbott agreed, telling the university on social media to “expel this student immediately. Mocking assassination must have consequences.” Texas State President Kelly Damphouse later confirmed that the student was no longer enrolled, explaining in a statement that the university “will not tolerate behavior that mocks, trivializes, or promotes violence.”

Eugene Volokh, a First Amendment expert at UCLA and Stanford, read those statements skeptically.

“Mocking assassination is protected by the First Amendment,” he said. “Speech that mocks, trivializes or promotes violence is protected by the First Amendment, generally speaking.”

Even as Texas’ Republican leaders have vowed to continue Kirk’s fight for free speech on college campuses, many have also demanded consequences for people who have reacted to his death by expressing sentiments they disagree with. Their actions may run afoul of the First Amendment, although the specific facts would have to be litigated in court, legal experts say.

This comes amid a broader sea change in Texas Republicans’ approach to free speech and academic freedom. This year, lawmakers walked back some free speech protections enshrined in state law in 2019; gave governor-appointed university regents greater oversight of curriculum; and recently helped oust a professor for what she taught in the classroom.

This pendulum swing, especially apparent in the response to Kirk’s death, reflects a larger hypocrisy in free speech enforcement, said Adam Steinbaugh, senior attorney with the Foundation for Individual Rights and Expression.

“Free speech is as American as apple pie. Everyone says that they love it, but it gets a lot harder for people when it is speech that they find offensive,” Steinbaugh said. “At that point, they start looking for the exits, for any way that they can stretch one of the exceptions of the First Amendment to reach the speech that they don't like.”

The pendulum swing

In 2017, after a white nationalist rally in Charlottesville, Virginia, turned violent, a Texas man put out a press release: “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M.” Alt-right speaker Richard Spencer signed on to speak at the rally in College Station, before the university cancelled it, citing safety concerns.

This decision came at a time when universities, in Texas and nationally, were facing significant blowback for restricting or cancelling appearances by conservative speakers, fueling a narrative that right-leaning voices were being unfairly silenced.

This outrage made its way to the Texas Legislature, which in 2019 passed a bill requiring that all outdoor spaces on university campuses be designated as open forums for public speech, and prohibiting universities from considering anticipated controversy when deciding whether to allow a speaker on campus.

“Our college students, our future leaders, they should be exposed to all ideas, I don’t care how liberal they are or how conservative they are,” state Sen. Joan Huffman, the Houston Republican who authored the bill, said at a hearing. “Sometimes we feel offended by what someone else says, and that’s just too bad in my book.”

Abbott said the law would stop universities from “banning free speech” on campus. “Shouldn’t have to do it, the First Amendment guarantees it,” he said as he signed the bill. “Now it’s law in Texas.”

Some First Amendment experts looked askance at this ostensibly positive legislation. Mary Ann Franks, a law professor at George Washington University, said it played into a strategy pushed by conservative groups, including Kirk’s Turning Point USA, to whip up anger toward higher education.

“That was the way to set up this really harmful framework that was trying to vilify students and universities as being intolerant,” she said. “You then set them up to say, ‘well, whatever we do against these bad universities is actually okay.’”

As this narrative of “liberal indoctrination” on college campuses took hold, Texas legislators exerted tighter and tighter control over universities. In 2023, they voted to eliminate all diversity, equity and inclusion offices, and tried to get rid of tenure for professors.

When protests broke out on college campuses nationwide over the war in Gaza in 2024, the president of the University of Texas at Austin called in the state police to quell the largest protests, drawing praise from Republican state leaders.

In response, lawmakers rolled back some of the protections enshrined in 2019. A new law, approved by the Legislature and signed by Abbott in June, restricts who can protest on campus and when, barring the use of amplification devices during class hours or expressive activity at night or at the end of the semester.

FIRE sued over the new law earlier this month, saying it’s overly broad and would have unintended consequences. It could be used to punish students for doing things like playing music, worshipping, wearing a Make America Great Again Hat or writing an op-ed during the nighttime hours, FIRE said in statements.

“It's human nature to say, I don't like this speech, let's find a way to stop it,” Steinbaugh said. “That is why the First Amendment is such an important limitation on government power, because it recognizes … if each of us gets to say, ‘you don't get to speak,’ then pretty much no speech will be saved.”

Kirk’s death tests free speech commitments

The ongoing tension around campus free speech was already running hot in Texas after the firing of two professors earlier this month — one at Texas A&M for how she taught about gender identity, and another at Texas State for comments he made at a conference. Texas A&M’s president later resigned amid political pressure for not responding more aggressively sooner.

And then came the assassination of Kirk on a college campus. Texas’ Republican lawmakers, many of whom were friends with Kirk and his family, publicly grieved his passing and condemned those who were celebrating his death.

On social media, Abbott praised the arrest of a Texas Tech student who made derogatory statements toward people at a Kirk vigil. That student is no longer enrolled at the university, a spokesperson confirmed. At a press conference, he said these reactions called for a “dramatic course correction.”

“A place where we can engage in that course correction is in our schools and on our campuses, whenever we see students who are celebrating an assassination,” he said. “That goes beyond the bounds of what is humane… and it must end.”

Lt. Gov. Dan Patrick and House Speaker Dustin Burrows announced new committees to explore issues of civil discourse and freedom of speech on campus.

“The political assassination of Charlie Kirk — and the national reaction it has sparked, including the public celebration of his murder by some in higher education — is appalling and reveals a deeper, systemic problem worth examining,” Burrows said in a statement.

But any protections for free speech on campus also must extend to public celebration, Steinbaugh said, no matter how distasteful leaders and members of the public may find it.

“Distasteful is when the First Amendment kicks in,” he said. “When you have speech that is very unpopular, especially if it's unpopular with political leaders, that is when you want to be able to lean on the First Amendment to say, let's slow down. You can't punish someone just because you think this speech is clearly offensive or egregious.”

There are some limits — students can’t incite or solicit violence, for example — but the bar is quite high to prove in court. If a student ripped up signs or got into a physical altercation, they could potentially face other consequences, but simply celebrating in front of grieving students is likely protected speech, legal experts said.

In a statement, a spokesperson for Abbott said “any student who violates their school's code of conduct by condoning or inciting political violence must face swift disciplinary action.” A university code of conduct would still be secondary to the protections of the First Amendment, which the courts have generally interpreted widely in support of college students’ right of expression, said Keith Whittington, a law professor at Yale University.

But getting justice for a free speech violation is difficult, requiring a lawsuit to slog its way through the court system. It’s an imperfect deterrent for universities, Whittington acknowledged.

“You might win some money, maybe you’ll get reinstated, but by then, from the university officials’ perspective, or government officials’ perspective, the controversy has blown over,” he said. “If you lose a court case three years from now, you're willing to do that in order to satisfy the immediate political needs.”

For decades, Whittington said, that approach would have been anathema to Republicans’ essentially libertarian approach to free speech. But as campus wars have heated up, the ground has shifted.

“We start seeing some people, even within the conservative intellectual and legal movements, who are voicing much more skepticism about free speech and the kinds of protections that had developed over the course of the 20th century, and would like to roll some of that back,” he said.

After the violent murder of a speaker on a college campus, it’s easy to understand why universities are on edge about students celebrating or mocking the incident, said Volokh, the UCLA First Amendment expert. One in three college students nationwide said it is acceptable to use violence to stop a speaker, up from one in five in 2020, according to a report from FIRE.

“This is the last thing we want to see more of, and if somebody's out there encouraging murders at universities or praising murders at universities … I can see why people are drawing these lines,” he said.

But at the end of the day, the First Amendment protections are clear.

“It's important to apply those rules as they're understood, and apply them even-handedly,” he said. “And there is no exception to the First Amendment for praise of violence.”

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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