The Volokh Conspiracy - Texas Tech Unclear on the First Amendment:

AP reports:

Texas Tech has banned the sale of a T-shirt featuring a drawing of a football player dangling Texas A&M's dog mascot by her leash.

The red shirts, with black text reading "VICK 'EM" on the front in a reference to the Aggies' slogan "Gig 'em," were created by a Tech student who said he has sold roughly 300 of the shirts through his fraternity ahead of Saturday's game against Texas A&M in Lubbock....

The back shows a football player, wearing Michael Vick's No. 7, hanging the mascot Reveille from the end of her leash. The suspended NFL quarterback has pleaded guilty to a federal dogfighting charge, admitting that he helped kill six to eight dogs.

"We will not permit individual students or any student organization to profit from selling merchandise on campus that is derogatory, inflammatory, insensitive, or in such bad taste that it reflects negatively on this fine institution, its students, athletic teams, alumni or faculty," school president Jon Whitmore said in a statement released by the school Tuesday afternoon.

The school also suspended the fraternity and plans to bring charges against it under the university's code of student conduct....

"You can't make light of a situation like that," Texas Tech media relations spokesman Chris Cook said. "That is in poor taste and poor judgment."

It sounds like the students involved are contrite, and aren't going to make a fuss about this; and if they want to apologize and take whatever punishment is meted out because they think their actions were unsportsmanlike or in bad taste, that's fine. But a public university like Texas Tech can't bar the sale of T-shirts because of their message — even a message that's "derogatory, inflammatory, insensitive, or in ... bad taste" — or suspend a fraternity for selling such T-shirts.

A public university can of course ban on-campus sales of merchandise generally; and it can likely impose viewpoint-neutral subject matter categories, such as allowing sales only of curriculum-related merchandise. But it can't ban sales based on the viewpoint of the text or pictures that the merchandise contains, whether it's a pro-animal-cruelty viewpoint (humorous or serious) or any other viewpoint, and whether the material is a T-shirt, a bumper sticker, or a book. Nor can it ban sales based on whether the text or pictures that the merchandise contains are "derogatory, inflammatory, insensitive, or in ... bad taste." And it certainly can't punish a student organization for expressing such viewpoints, on T-shirts or otherwise.

UPDATE: Thanks to a reader, here's a photo of the front and back of the T-shirt:

	[Eugene Volokh, October 10, 2007 at 2:11am] Trackbacks Texas Tech Unclear on the First Amendment: AP reports: Texas Tech has banned the sale of a T-shirt featuring a drawing of a football player dangling Texas A&M's dog mascot by her leash. The red shirts, with black text reading "VICK 'EM" on the front in a reference to the Aggies' slogan "Gig 'em," were created by a Tech student who said he has sold roughly 300 of the shirts through his fraternity ahead of Saturday's game against Texas A&M in Lubbock.... The back shows a football player, wearing Michael Vick's No. 7, hanging the mascot Reveille from the end of her leash. The suspended NFL quarterback has pleaded guilty to a federal dogfighting charge, admitting that he helped kill six to eight dogs. "We will not permit individual students or any student organization to profit from selling merchandise on campus that is derogatory, inflammatory, insensitive, or in such bad taste that it reflects negatively on this fine institution, its students, athletic teams, alumni or faculty," school president Jon Whitmore said in a statement released by the school Tuesday afternoon. The school also suspended the fraternity and plans to bring charges against it under the university's code of student conduct.... "You can't make light of a situation like that," Texas Tech media relations spokesman Chris Cook said. "That is in poor taste and poor judgment." It sounds like the students involved are contrite, and aren't going to make a fuss about this; and if they want to apologize and take whatever punishment is meted out because they think their actions were unsportsmanlike or in bad taste, that's fine. But a public university like Texas Tech can't bar the sale of T-shirts because of their message — even a message that's "derogatory, inflammatory, insensitive, or in ... bad taste" — or suspend a fraternity for selling such T-shirts. A public university can of course ban on-campus sales of merchandise generally; and it can likely impose viewpoint-neutral subject matter categories, such as allowing sales only of curriculum-related merchandise. But it can't ban sales based on the viewpoint of the text or pictures that the merchandise contains, whether it's a pro-animal-cruelty viewpoint (humorous or serious) or any other viewpoint, and whether the material is a T-shirt, a bumper sticker, or a book. Nor can it ban sales based on whether the text or pictures that the merchandise contains are "derogatory, inflammatory, insensitive, or in ... bad taste." And it certainly can't punish a student organization for expressing such viewpoints, on T-shirts or otherwise. UPDATE: Thanks to a reader, here's a photo of the front and back of the T-shirt: