T-Shirt Thoughtcrimes at Florida International

At Florida International University, seven students are being punished for wearing T-shirts. A university banning words and prohibiting expression is contrary not just to the First Amendment but everything that a college is supposed to represent.

In a conversation between University President Jeanette Nuñez and former baseball player Alex Rodriguez, the students silently stood up, revealed shirts that read “ICE OFF FIU” and quietly walked out a few minutes later.

Obviously, we all worry about the deep intellectual loss that could occur if anyone was momentarily distracted from this essential discussion between a university president and a retired baseball player. But we must allow protests to occur that do not substantially disrupt events or prevent them from being heard, even when the events have the utmost global importance.

There was no allegation of any disruption of the event. Instead, the students are being punished under FIU rules that ban all indoor protests. The seven students were found guilty of misconduct with a written reprimand on their permanent record and forced to record an original video displaying their understanding of the rules.

In a June 18 letter, the Foundation for Individual Rights and Expression explained these “constitutional defects” of the policy to FIU and urged the university to drop all charges against the students.

According to the FIU administration, “FIU applies its rules prohibiting protests and demonstrations in university buildings consistently, regardless of viewpoint.”

But all bans on protests are automatically viewpoint discrimination. They ban expression against the speakers but not expression in favor of the speakers. In this case, would FIU punish someone who wore an Alex Rodriguez jersey and stood up to applaud him? Obviously not. Nor would FIU punish someone who wore an FIU shirt and stood up to applaud the president (as implausible as that seems), even though those noisy actions would actually disrupt the event momentarily, unlike the silent students who were punished.

FIU might argue that a ban on all protests is not viewpoint discrimination because it bans protests of any viewpoint. That analysis is completely wrong. Bans on viewpoint discrimination apply to every specific enforcement of a rule and not merely the general wording of the rules. Imagine if the government passed a law banning criticism of the government and then claimed that it’s legitimate because there’s no viewpoint discrimination if you ban all criticism of every government. All bans on protests per se are an admission of viewpoint discrimination.

Viewpoint discrimination is not the only problem here. There is a First Amendment right to protest, and so any ban on indoor protests is inherently unconstitutional.

In 2024, after Harvard punished students and faculty for having stickers on their computers based on a similar ban on indoor protests, I noted,

Unlike Harvard, FIU must obey the First Amendment, which it is clearly violating. In fact, FIU’s rules are so extreme that they ban all “expressive activities” within 50 feet of all residence halls—meaning that students could actually be punished for having conversations in their own dorm rooms. Of course, we all know that these extraordinarily broad restrictions will only be arbitrarily applied to views and actions that the administration doesn’t like. But the rules themselves are unconstitutionally broad and vague.

That doesn’t mean every protest activity is protected speech. You don’t have any right to shout down speakers and silence the speech of others. You don’t have the right to disrupt activities. But colleges need to enact and clearly specify rules against actions that cause a substantial disruption and then enforce those rules in a viewpoint-neutral way, rather than ban all indoor protests. And wearing a T-shirt with three words on it is clearly protected by the First Amendment.

The punishment directed at the students is also suspect. Forced apologies and other forms of compelled speech violate First Amendment rights. Educational penalties can be acceptable (although I’m intellectually outraged that FIU is requiring the students to record hostage videos rather than making them write a paper). But educational requirements must meet an educational purpose and not force students to agree with the punishment. Of course, when the rules, the investigation and the findings all violate the First Amendment, the punishment will also be illegitimate. Compelled speech that forces students to agree with their punishment is simply adding an unconstitutional penalty on top of an unconstitutional verdict enforcing unconstitutional rules.

Some conservatives might applaud any repression of their enemies no matter what the Bill of Rights says. But FIU’s repression of free speech is a dangerous precedent. Every T-shirt or hat with a message can be a protest when it gets near someone expressing an opposing view. Do conservatives really want colleges to have the power to ban MAGA hats and pro-Trump T-shirts?

Wearing a T-shirt is not a crime. Standing up is not a crime. Walking out of an event is not a crime. Doing all of these legal activities with an intent to express an idea does not turn them into crimes.

When thoughts are turned into crimes, everyone’s freedom is endangered.