Texas’ After-Dark Campus Speech Ban Goes Before the Fifth Circuit

•10/6/2026

PoliticsLocalStory

Texas’ After-Dark Campus Speech Ban Goes Before the Fifth Circuit

Can Texas turn off free speech on its public college campuses at 10p.m.? Three federal appeals judges in New Orleans started answering that question Tuesday morning.

The U.S. Court of Appeals for the Fifth Circuit heard argument in Fellowship of Christian University Students at UT Dallas v. Eltife, the challenge to Senate Bill 2972, the 2025 law Texas calls the Campus Protection Act. A federal judge in Austin blocked key parts of the law nearly a year ago. The University of Texas System wants that order thrown out. A ruling will likely take months, but the case is shaping up as one of the most important campus speech fights in the country.

What the Law Does

At its base level, SB 2972 requires Texas public universities to adopt policies banning “expressive activities” on campus from 10 p.m. to 8 a.m. and during the final two weeks of each semester. The law defines that term as any speech or expressive conduct that the First Amendment protects. When you read that at first, you might think to yourself, “Wait, this was a law passed in Texas?” Well it most certainly was. A Red state legislature passed a law limiting speech on public college campuses.

The Legislature passed it after the Spring 2024 pro-Palestinian protests, when UT-Austin called in state troopers to break up a campus demonstration. Then-Senator Brandon Creighton authored the bill, and Governor Greg Abbott signed it in June 2025. It took effect on September 1st, 2025.

The law also marked a reversal. In 2019, Texas passed a campus free speech law declaring the common outdoor areas of public campuses to be traditional public forums, open to anyone’s expression. SB 2972 struck that guarantee and gave university administrators power to limit where demonstrations can happen.

The Lawsuit and the Injunction

The Foundation for Individual Rights and Expression (FIRE) sued on September 3rd, 2025, two days after the law took effect. Its clients span the ideological map: a Christian student fellowship at UT Dallas, a drumming ensemble at UT-Austin, student journalists, and Young Americans for Liberty, a libertarian student group.

Their examples are deliberately ordinary. A student reporter filing a story from a dorm room at 10:30 p.m. A prayer group hosting a visiting minister. A percussion group rehearsing in a music space during finals. In its appellate brief, FIRE put the point bluntly: the Legislature “cannot send the First Amendment to bed at 10 p.m.”

On October 14th, 2025, Senior U.S. District Judge David Alan Ezra agreed the students were likely to win. He blocked UT System officials from enforcing the overnight ban and the end-of-semester limits on speakers, amplified sound and drums. Ezra found the rules too broad and too vague, warning that letting administrators and police decide what counts as “disruptive” invites enforcement against unpopular speech. He also noted that genuinely disruptive or dangerous conduct is already banned under existing city and university rules.

What the Court Has to Decide

The appeal turns on four questions, and Texas does not need to win on all of them.

Can the students sue at all? Texas Solicitor General William Peterson and Assistant Solicitor General Daniel Ortner argue the law regulates universities, not students, so students cannot show the statute itself harms them. FIRE answers that the law leaves schools little choice. It says universities “shall adopt” the bans, it requires discipline, and UT Dallas copied it almost word-for-word. The Fifth Circuit has long held that chilled speech is a real injury in pre-enforcement cases. But this court has recently been willing to trim standing in First Amendment cases, as it did in this year’s ruling on Texas’s drug law.

Is the law really that broad? Texas says Ezra read the statute too rigidly. The law says nothing in it may be construed to infringe First Amendment rights, and UT-Austin’s own policy targets common outdoor areas and sound loud enough to be heard in dorms and classroom buildings. FIRE replies with a line from the U.S. Supreme Court’s 2010 decision in United States v. Stevens: courts do not uphold an unconstitutional statute because the government promises to use it responsibly.

Is it content-based? This may be the decisive question. Texas calls the law a content-neutral rule about time, place and manner, the kind courts routinely uphold under a more forgiving standard. FIRE argues the law is content-based because it exempts commercial speech like selling merchandise or soliciting donations. If FIRE wins that point, the law faces strict scrutiny, which few laws survive. The Fifth Circuit has history here. In 2022, the U.S. Supreme Court reversed the Fifth Circuit in City of Austin v. Reagan National Advertising, holding that a rule is not automatically content-based just because officials must read a message to apply it. Expect Texas to lean on that decision.

Is it narrowly tailored? Even under the lighter standard, a speech restriction must be narrowly tailored to a real government interest. Protecting sleep and final exams is a legitimate goal. The problem for Texas is breadth. A ban on all noncommercial expression for ten hours every night reaches far beyond the encampments that inspired the law, a point Yale scholars Keith Whittington and Joe Cohn pressed in a friend-of-the-court brief (also known as amicus briefs). The end-of-semester limits on amplified sound and drums look more like ordinary noise rules and may be easier for Texas to defend.

One more thing to keep an eye on: the Fifth Circuit’s recent habit of sending free speech cases back to trial judges. In the drag law case, the court vacated an injunction because the lower court had not applied the Supreme Court’s 2024 framework for facial challenges in Moody v. NetChoice. The same move here would let the law take effect while the case starts over, without the appeals court ever declaring it constitutional.

Why it Matters in Central Texas

Judge Ezra’s order protects students in only one place: the University of Texas System, because UT officials are the only defendants. SB 2972 itself applies to every public university in the state. That means students at schools outside the UT System, including Texas A&M University-Central Texas in Killeen, are not covered by the injunction.

The Fifth Circuit’s ruling will reach further. Whatever the court decides about the law’s scope, standing and level of scrutiny will guide every federal judge in Texas, Louisiana and Mississippi. If the court sides with the state, other legislatures are likely to copy the Texas model. If it sides with the students, the law’s core provisions are in serious trouble statewide.

What Happens Next

The panel will issue a written opinion, likely months from now. Until then, Ezra’s injunction stays in place for the UT System, and the district court case remains paused while the appeal is pending. Whichever side loses can ask the full Fifth Circuit to rehear the case, and the U.S. Supreme Court may ultimately get the last word.

The Fifth Circuit has given Texas a long run of wins in speech cases, from library books to drag shows to app stores. But this law asks the court to accept something unusual: a nightly blackout on nearly all protected expression on public property. FIRE attorney Adam Steinbaugh summed up the students’ position before the hearing, saying the First Amendment “does not rise and fall with the sun.” The question now is whether three judges in New Orleans agree.

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