THROUGH THE YEARS: University protection of free speech expands over the decades


Senior News Reporter
LEFT: Regulations of free speech at the Stallions were not as lenient during the Vietnam War as they are today. RIGHT: Students gather at the free speech zone Feb. 12 on campus.

The protest was silent, but the message was loud and clear—the war in Vietnam needed to end.

In the midst of the Vietnam War, a series of anti-war protests surged through university campuses across the nation. Southwest Texas State University was no exception. 

About 100 students rallied around the Fighting Stallions in November 1969 in a silent and nonviolent anti-war protest despite warnings from university officials to not participate in such events. Their constitutional right to freedom of speech proved to come at a cost.

At the time, the University Policy and Procedures Statement on free speech, UPPS No. 07.04.05, only permitted campus expression in an area on the edge of campus on Fridays after 4 p.m. 

The American Civil Liberties Union (ACLU) was contacted by the students prior to the demonstration and advised them to remain silent and not block any sidewalks during the event, said Al Henson, one of the protestors who was in his second semester at the university in 1969. 

Floyd Martine, then the dean of students, arrived within minutes of the demonstration in an effort to put an end to the activity, Henson said. 

“He gave us the ultimatum to depart from the area or suffer the consequences,” Henson said. “I just felt like I was fully within my rights to sit there.”

Ten students continued to protest after Martine’s announcement. Those students came to be known as the “San Marcos 10.” The dean decided the 10 students would be expelled and all course credit earned at the university would be erased. 

Henson said he avoided his parents for several days after the incident for fear of what his father, a decorated World War II veteran, would say. 

“He said, ‘Look son, I don’t necessarily agree with you on all this war stuff,’ but he said, ‘I’m so proud of you that you stood up for something that you truly believed in,’” Henson said. “I was blown away, and he became my hero all over again.”

ACLU representatives observed the event. Officials immediately filed a lawsuit on the students’ behalf, Henson said. After a long legal battle, the Fifth Circuit Court of Appeals ultimately upheld the decision of the school in Bayless v. Martine

Henson’s expulsion marked the end of his college career, but he harbors no hard feelings against the university.

“Freedom of speech is a freedom, but it doesn’t mean it’s free,” Henson said. “You pay the cost every once in a while.”

The targets for consequences extended beyond the San Marcos 10.

Bill Cunningham, who was a sophomore in 1969, was managing editor of The University Star at the time. He was fired from the publication for writing an editorial condemning the actions of the university toward the students. 

“It was actually a pretty well-written editorial, I thought,” Cunningham said.

The students were denied their rights as guaranteed by the U.S. Constitution, Cunningham wrote in his editorial.

“The only people breaking the law on that day were the administrators because they were breaking the constitutional First Amendment rights of speech and assembly,” Cunningham said.

Cunningham did not stop there.

After leaving The University Star, he continued to participate in anti-war activity and  covered it in his own underground newspaper called the Purgatory Creek Press.  

“As a journalist, I’ve learned that you need to fight for your rights,” Cunningham said.

The university’s treatment of freedom of speech is more tolerant today than it was in 1969, but some students remain unsatisfied.

The Foundation for Individual Rights in Education (F.I.R.E.), a non-profit group focusing on civil liberties in academics, has given the university a “yellow light” rating, said Azar Majeed, director of the individual rights education program for F.I.R.E.

F.I.R.E. rates the free speech policies of universities across the nation according to red-, yellow- and green-light standards, Majeed said.

Red-light schools have one or more policies in violation of students’ constitutional rights. Yellow-light schools have one or more ambiguous policies possibly leaving room for abuse of students’ rights. Green light schools completely abide by the constitution. 

Texas has no green-light and only five yellow-light schools. Texas State has four policies F.I.R.E. considers yellow-light. 

The free speech zone policy is particularly concerning, Majeed said. 

“(The policy) limits where on campus you can do something as simple as distributing literature or handing out pamphlets, having a symbolic protest—all these types of things that are more First-Amendment activities,” Majeed said. 

Policies like these have been proven unconstitutional, Majeed said. 

In 2004, a federal court struck down a similar free speech zone policy at Texas Tech University after a student lawsuit, Majeed said.  

“(Because) this happened at Texas Tech, you would think that schools like Texas State would know better based on that case,” Majeed said. “It’s disappointing to see that a policy like this still exists.”