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The Tampa Five: An Assault On Free Speech

Above Photo: Three campus police sitting on Gia Davilla, University of South Florida. March 6, 2023, from video by Simon Rowe.

A police riot in Tampa.

On March 6, 2023, a small group of protesters belonging to the University of South Florida chapter of Students for a Democratic Society, trooped across campus to the Patel Center where the university president, Rhea Law has her office. The marchers were mostly young women carrying nothing more sinister than a megaphone, a banner reading “we want increased Black enrollment” and the water bottles ubiquitous among students on Florida campuses. In addition to their demands for higher Black enrollment, they wanted President Law to speak out in opposition to proposed Florida HB999 which banned diversity initiatives, and a meeting with her.

Upon entering Patel, the group was quickly confronted by many campus police and admonished for their loudness, though they had jettisoned their megaphone. Less than a minute later, and in the absence of a clear order to disperse, the cops began to grab protesters, forcing some to the floor.  One of those, Gia Davilla (age 22, 110 pounds), was pinned down by three officers. At one point, as the  video reveals, her pale legs and sneakered feet flailed helplessly beneath their weight. Another student, Laura Rodriguez (23), who is not a professional wrestler, escaped an attempted chokehold. Outside Patel, Chrisley Carpio (31), a protester and campus employee, was pushed to the ground and sat upon by four cops. She was arrested for trespass and battery. A fifth desperado, Lauren Pineiro (23), was taken into custody a month later – police missed their chance to sit on her. The trespass charges were later dropped; the battery charges still stand with trial set for the Fall. A rationale for the police to rapidly clear the Patel Center of protesters has not been given. A USF internal review speaks of a “disruption of regular building operations”, in other words, a protest. What happened in response was a police riot – but who ordered it?

American injustice

On the scale of American injustice, the Tampa Five may not rank with the Scottsboro Boys, Hollywood Ten, Chicago Seven, or Central Park Five. Their support for increased enrollment of Black students at USF is uncontroversial, and the manhandling they received from campus police did not, miraculously, result in serious injury. Even if convicted of battery against campus police officers – a ludicrous charge judging by thevideos – they’ll likely escape significant prison time, given their ages and the circumstances.

But the charges against Gia, Laura, Lauren, Chrisley, and Jeanie Kida (26) are serious and have the potential to do them real damage. Just as important, the case represents a further escalation in the ongoing criminalization of protest in Florida. If they are convicted, few college students – or anybody else in Florida — will feel safe exercising their constitutionally protected right to assemble and protest. That’s what Lauren Pineiro, one of the Five, wrote to me last week: “If the state succeeds in putting us in prison, a dangerous precedent for student protest will be set….that’s exactly why we must continue to fight for our rights and protest in the face of this political repression.”   A state or country that criminalizes protest approaches the condition of authoritarianism or fascism. Restrictions of speech and assembly enable those with power to impose a single, timeless standard of identity, belief, and behavior upon a diverse people and nation.

Existing protections of free speech and assembly in Florida

The right to free speech and assembly is guaranteed by the first Amendment to the U.S. Constitution, part of the Bill of Rights:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These rights have repeatedly been tested in the U.S. Supreme Court. While the “establishment of religion” exclusion has lately been weakened by conservatives, “freedom of speech” has been strengthened by liberal and conservative courts alike. All sorts of expressive conduct are now protected, including flag burning, pornography, campaign donations, misinformation about military service, speech by students in public schools, and protests targeting any branch or agency of government.  Moreover, laws that restrict speech must be narrowly drawn to be “content neutral.” That means speech limitations must not favor any one attitude, idea, or belief. The doctrine has been extended to prohibit laws that on their face appear content neutral, but which are discriminatory in intent or application. That was the basis for a federal judge blocking a new Florida law banning kids from attending drag show performances. The law claimed to be protecting children from “lewd performances” of all kinds, but in fact was directed at drag.

Every U.S. state has its own constitution that also protects the right to free speech and assembly, Florida included. Section Four of the Florida Constitution reads in part:

“Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that right. [“Abuse” here refers to libel.] No law shall be passed to restrain or abridge the liberty of speech or of the press.”

Section Five says:

“The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.”

Florida state colleges and universities grant additional layers of protection, some of which fall under the category “free speech” and others “academic freedom.” The University of South Florida Faculty Handbook, (the de facto contract between faculty and Florida education officials), contains the following declaration:

“USF is committed to the fundamental principles of academic freedom and believes that only in an environment of free inquiry, free expression, intellectual honesty, and respect for human dignity can the university fulfill its mission. Academic freedom applies to teaching, research/creative activity, and public service and is a right of both faculty and students. Faculty members have the freedom to present and discuss their own academic subjects frankly and forthrightly without fear of censorship [Chapter 9].

The Collective Bargaining Agreement between the United Faculty of Florida (the faculty union) and the University of Florida Board of Trustees contains a similar guarantee of academic and expressive freedom, including the right of faculty to “present and discuss, frankly and forthrightly, academic subjects, including controversial material relevant to the academic subject being taught.”

And finally, in 2018, the Florida legislature passed the Campus Free Expression Act. Intended by its Republican sponsors to ensure a secure platform for conservative speakers, the law nevertheless affirms:

“A person who wishes to engage in an expressive activity in outdoor areas of campus may do so freely, spontaneously, and contemporaneously as long as the person’s conduct is lawful and does not materially and substantially disrupt the functioning of the public institution of higher education or infringe upon the rights of other individuals or organizations to engage in expressive activities.”

(Though the initial confrontation between the Tampa Five and USF police occurred inside the Patel center, the cops converged on the site because of protected speech activity outside. And it was outside that some of the arrests were made.)

Now, a cheat sheet listing new laws that infringe upon the right to free speech and assembly.

Given all these free speech protections, you would think the Florida governor, legislators, education officials and university presidents would accept their inviolability.  But you’d be wrong.

Over the past three years Ron DeSantis and Republican Party legislators have passed a raft of laws that seek to invalidate rights to free speech and assembly.  The following is a partial list:

+ Florida HB 1557/HB1069 the infamous “Don’t Say Gay” law, prohibits teaching about “sexual orientation or gender identity” through 12th grade, and limits instruction concerning reproductive or sexual health. The bill further disallows school students or employees from referring to each other with pronouns that don’t conform with their assigned sex at birth. (If a child uses a nickname, parents must send notes granting permission for it, lest some devious, trans-aspiring child contrives to use a gender non-conforming one.) Finally, the law permits parents to file civil suits against school districts they believe have enabled prohibited instruction. A challenge to the bill was rejected last week by U.S. District Court judge Wendy Berger, a member of the Federalist Society and Trump nominee. (The Federalist Society opposes laws that prohibit discrimination based upon sexual orientation and gender identity.)

+ Florida SB1438 is the anti-trans bill mentioned earlier. It forbids children attending “adult live performances” Though the bill makes no mention of drag shows, both the governor and bill sponsors have said these are the target of the legislation. The bill has been struck down by a US district court judge, Gregory Presnell. The state is appealing.

+ Florida HB7, called the “Stop WOKE Act,” prohibits teaching that individuals share responsibility for past discrimination by virtue of their race, sex, or national origin. Among prohibited concepts is that an individual “should be discriminated against” to “achieve diversity, equity, or inclusion [DEI].” The law has been temporarily blocked by a federal judge. In a July filing in support of the law, attorneys for the state acknowledged that the act would bar any professor saying in class “I agree with affirmative action.”

+ Florida HB1467 mandates annual review of books in primary school libraries and establishes a state registry of parental complaints over book content. The law is intended to disallow books with supposed pornographic or race-based material. The result has been a purging of suspect books and fear among school librarians. (Banned authors in Florida include Upton Sinclair, Richard Wright, George Orwell, Toni Morrison, and Kurt Vonnegut. In Hillsborough Country, Shakespeare has been bowdlerized.) Violation of the law would subject librarians to felony charges. The Florida Teachers Association has filed suit to limit application of the measure.

+ Florida HB1 (2021) preempts the power of local governments in Florida from shifting resources from police to social services, thus undercutting future efforts to defund the police. (That measure was partially rescinded this year by the Legislature after a legal challenge from six Florida cities.) HB1 also defines and prohibits “riot” in such a way as to make peaceful protesters criminally liable for unlawful actions by others involved in a demonstration. It additionally creates a new crime of “mob intimidation” and criminalizes “doxing”, publishing another person’s identification to “harass the person.” These provisions have been challenged in court and their implementation is currently blocked.

+ Florida SB1604 is Governor DeSantis’s and Republican legislators’ attempted retribution against the Disney Corporation for its public opposition to HB1557, the “Don’t Say Gay” law. The bill repeals the special authority Disney exercised over approximate 40 square miles of corporate property in Orange and Osceola counties, near Orlando. Disney sued, and the Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support. They see the bill as a threat to press and expressive freedom. (The law is clearly a bill of attainder or ex post facto law, barred by Article 1, sections 10 of the U.S. Constitution.)

+ Florida HB999 prohibits diversity, equity, and inclusion initiatives on UF campuses as well as the teaching of critical race theory, radical feminist theory and queer theory. (Scholars have for decades debated the meaning of these terms – the legislature appears to have quickly resolved the controversies.) It also forbids instruction based on “theories that systemic racism, sexism, oppression, or privilege are inherent in the institutions of the United States and were created to maintain social, political, or economic inequities.”

All these laws are on their face, infringements of spoken or expressive freedom, or the right to assemble and protest. HB999, a target of the March protest by the Tampa 5, is especially egregious. If adhered to by competent historians, the law would prevent teaching about the U.S. Declaration of Independence and Constitution, which together aver that Native Americans are “merciless Indian savages”, women shouldn’t vote, Blacks must remain slaves, and enslaved people have an electoral value 3/5 of a white person. The latter measurement was overturned in 1870 by the 15th Amendments granting Black people the right to vote, though it would take the Voting Rights Act nearly 100 years later to make that a reality.

Senior college administrators have been silent or complicit in the Republican onslaught.

Senior administrators — chiefly college and university presidents — have abetted the assault upon free speech and assembly, according to an investigation by the American Association of University Professors. They published last May a preliminary report on what they call “a politically and ideologically driven assault [on public higher education] unparalleled in US history.” This attack, led by Governor DeSantis and the Republican majority in the legislature, is intended to:

“dictate and enforce conformity with a narrow and reactionary political and ideological agenda throughout the state’s higher education system…. A key component of this agenda has been an effort to destroy college and university programs that serve minority communities and to banish from classrooms any information or ideas about race, gender, and sexual identity that fail to conform to the prejudices of politicians.”

Time after time, the AAUP reports, campus administrators bent over backwards to accommodate DeSantis and his allies. For example, when the governor in late December 2022, directed college and university heads to compile lists of their DEI (diversity, equity, and inclusion) and CRT (critical race theory) spending, they immediately complied. They even boasted about their ability to quickly identify and eliminate any academic program “that compels belief in critical race theory or related concepts such as intersectionality.”

Tepid resistance

Whether on a street corner or in state government, bullies thrive on vulnerability. DeSantis’s targets were selected because they are weak. (Many Republicans now consider the attack on Disney a tactical error for just that reason – the Mouse roared.) Trans children are vulnerable to DeSantis and his followers because of their small numbers and liminal status. There are about 16,000 trans kids aged 13-17 in Florida and some 2,200 high schools. That means that there are about 7 trans kids per high school. (Average high school enrollment is around 900.) Gay kids were chosen because they already get bullied – and what aspiring fascist can resist piling on? Librarians have also been attacked — they are readers, not fighters. College students rarely vote and are mostly, (alas), quiescent, so curbing their right to protest was a no-brainer.

University faculty are another story. They are educated, politically informed and vote in large numbers.  They have rhetorical skills honed in the seminar room, faculty lounge and conference auditorium, and they have good contacts in the media. But they have a flaw that can be exploited by Republican politicians: naivete. They tend to believe that differences may be resolved by discourse. Activism, protest, defiance, confrontation, and political organizing are unrewarded skill sets for university professors.

In fact, professors in Florida have not engaged in large scale organizing or protests; and they have taken only limited, legal action. One example of the latter came in 2021. That’s when a group of Political Science professors at UF Gainesville challenged the decision of administrators to prevent them from giving court testimony for plaintiffs whenever DeSantis was the defendant. The UF administration backed down in the face of the lawsuit and a chorus of nation-wide criticism. It helps to make noise.

So, who called the cops?

Rhea Law was a corporate lawyer, USF board member, and loyal Republican fundraiser before her inauguration as president in January 2023. A few weeks later, she once again proved her party fealty. Rather than publicly challenge HB999 that bans diversity initiatives, she announced that USF would halt its long-planned search for a chief diversity officer. Then on March 6, she was at first silent, and then approving of the police assault upon students protesting HB999 and low Black enrollment. Was it her or someone in her office who called the cops on the SDS protestors? The university’s internal report on the incident only says: “Administration was asked to respond to the demonstration…”  (Law did not respond to my inquiries. The USF office of General Council kindly provided me the university’s internal review of the protest but did not answer my question about the identity of the administrator.)  The SDS protesters were known to Law; some of them had briefly disrupted her inauguration a few weeks earlier. That event, as well as the March 6 protests were likely on her mind when she told a meeting of the FSU Faculty Senate on April 17, that students must learn “the parameters of free speech and that you cannot be disruptive.”

Protest: verb, transitive. (Chiefly U.S.) To object to (an action or event); to challenge or contest; (also) to make the subject of a public protest or demonstration. [OED]

What would President Law have said about  Martin Luther King’s visit to segregated Tampa in 1961 and St. Augustine in 1964? In Tampa, King described, according to accounts, (his actual speech is lost), how ”hundreds of Negro youth have been hurled into jails, beaten and humiliated.” He further called for “every Negro to develop a world perspective and engage in creative protest to break down the barriers of segregation.” Three years later, in St. Augustine, Florida, someone shot a hole in the window of the cottage King rented. Later, he was arrested for trying to get served at the segregated Monson Motor Lodge. Non-violent protest is not silent protest or polite protest; it is intended to disrupt the smooth operation of systems of injustice.

Students who violate the law during a protest can expect to be arrested, like Dr. King was. But they and all of us should demand that the implementation of law be correct and proportionate. The arrest and charges against the Tampa Five appear to be neither. As things stand, their guilt or innocence will be determined in court.

The prospects for free speech and assembly in Florida are less cut and dry. Many of the most offensive laws have been suspended by court injunction or even reversed, but not all. Some of the laws, like the HB1 (against protest) and HB999 (against DEI, “radical feminist theory”, etc.) are so vague that faculty might feel safe continuing to speak and teach just as they have. What professor, after all, “compels belief in critical race theory or related concepts such as intersectionality.”  Ditto attacks on the right to free assembly – some of the provisions of HB1 are so vague as to be unenforceable.  Besides, it will be an unpopular prosecutor who arrests granny at an abortion rights protest because some other protestor cast a stone that broke a window. But to rely on the good sense of police and prosecutors is to change the legal system from one based on laws to one based on people. What’s needed now is not faith that good sense will out, but a broad-based repudiation of DeSantis’ takeover of the Florida’s educational system and attacks on fundamental rights.

There is a path forward. DeSantis and his legislative minions are susceptible to legal action and public pressure (protests) by students, faculty, and the public. But to be effective, they must be vociferous and sustained. The governor’s opponents must also be strategic, bringing into their fold civil rights and social justice organizations, professional societies, corporations, sports teams, philanthropic foundations, and accreditation agencies. Faculty and students must be willing to vote with their feet. A brain drain, decline in university applications, decreased federal and corporate funding of research, and lower academic rankings are political poison to university presidents and Republican elected officials.  Disruption must be the order of the day.

Correction: The first paragraph of this article has been corrected to clarify that the school in question is the University of South Florida, not Florida State University.

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