Tag: Amendment

Texas runs afoul of the First Amendment with new limits on faculty course materials
In a major broadside against the First Amendment, public university systems in Texas are ordering faculty to watch what they say in the classroom, as state authorities have outlined ideas they want universities to stay away from when teaching their courses.

The Texas Tech University System ordered its five member-universities to comb through faculty materials to root out any of the state’s disfavored viewpoints, and Texas A&M ordered its faculty not to “advocate” for “race or gender ideology,” or topics concerning sexual orientation or gender identity in the classroom, without getting approval for whatever they’re teaching first.

On Dec. 1, the Texas Tech University System issued a memo to faculty outlining the views faculty members cannot “promote or otherwise inculcate” in the classroom. Those concepts include:
One race or sex is inherently superior to another;

An individual, by virtue of race or sex, is inherently racist, sexist, or oppressive, consciously or unconsciously;

Any person should be discriminated against or receive adverse treatment because of race or sex;

Moral character or worth is determined by race or sex;

Individuals bear responsibility or guilt for actions of others of the same race or sex; or

Meritocracy or a strong work ethic are racist, sexist, or constructs of oppression.
The memo also requires that if faculty believe that their course materials may touch on these issues, they must submit the material to the Board of Regents for review.

At first glance, some of these concepts may appear innocuous on the surface. The memo attempts to hedge by cabining its impacts to “advocacy or promotion,” which it defines as “presenting these beliefs as correct or required and pressuring students to affirm them, rather than analyzing or critiquing them as one viewpoint among others.”

Meanwhile, at Texas A&M, the Office of the Provost issued guidance prohibiting faculty from “requiring or encouraging students to hold certain beliefs, particularly regarding gender or race ideology or sexual orientation, or to feel shame for belonging to certain racial or ethnic groups.” Faculty there also have to submit their course materials for review before teaching. That guidance hedges itself by specifying that faculty may still “present concepts and theories that are contrary to what a student believes.”

But a significant chilling effect remains. It does not take much to envision how broad, sweeping mandates like these chill faculty instruction. The state is singling out specific viewpoints that it does not want faculty to teach their students. If faculty wanted to impose the opposite viewpoint — say, the idea that moral character or worth is not determined by race or sex, that would presumably be fine with state authorities.

Those authorities may not like it, but the First Amendment prohibits the singling out of specific viewpoints for disfavor. When faculty discuss these issues, they will have to walk on eggshells to ensure that they aren’t perceived as advocating for a specific viewpoint. But if they want to just stick to pressuring students to adopt the state’s pre-approved position? No problem!

That’s viewpoint discrimination, plain and simple. Preventing faculty — or anyone else — from speaking based on the ideas they express is “censorship in its purest form.” Academic freedom protects the right of faculty to determine how best to approach potentially sensitive topics. It does not abide administrators placing their thumbs on the scale for ideas they like or dislike.

The language in Texas Tech’s memo echoes language in Florida’s Stop WOKE Act, which FIRE is currently challenging to prevent the law from restricting the classroom instruction of faculty at colleges and universities in Florida. That act regulates classroom instruction on eight concepts regarding “race, color, national origin, or sex.”

In late 2022, after FIRE sued, a federal court halted the enforcement of the act’s components implicating higher education. The court described the act’s restrictions as “positively dystopian” and rightfully recognized that the First Amendment protects professors’ in-class speech, and therefore prohibits authorities from banning teaching certain ideas in the classroom.

Now, FIRE is writing to all of the member universities of the Texas Tech system, and publicly flagging our serious concerns with these directives from authorities. We urge universities to remain steadfast in their commitment to the First Amendment. Those well-versed in their constitutional history know that decades ago the Supreme Court warned against “laws that cast a pall of orthodoxy over the classroom,” Authorities in Texas would do well to remember this lesson.
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December 12, 2025
Free speech advocates rally to support FIRE’s defense of First Amendment protections for drag shows
Drag shows are inherently expressive and protected under the First Amendment. That’s what a panel of the U.S. Court of Appeals for the Fifth Circuit held back in August, reversing a district court’s decision that had upheld West Texas A&M University’s campus-wide drag show ban.

Yet several weeks later, the Fifth Circuit elected to vacate the panel’s decision and rehear the case en banc, meaning the full Court will consider whether the First Amendment permits government officials to ban a drag show because they disagree with the show’s message. As FIRE fights to preserve the panel’s decision upholding the right of public university students to engage in expressive conduct, a broad coalition of free speech advocates has rallied to file “friend of the court” briefs in support.

Here’s what happened: West Texas A&M University maintains Legacy Hall as an open forum for students and the public to interact and engage in expression. FIRE’s client in this case is Spectrum WT, a long-recognized student organization that seeks to provide support for and promote acceptance of the LGBTQ+ student body. To that end, Spectrum WT hosts a wide range of campus events, both social and educational, to raise awareness of issues important to LGBTQ+ students and foster a strong sense of community and acceptance.

The Constitution prohibits University officials from censoring student expression on campus because they happen to disagree with its underlying message.

Several years ago, Spectrum WT began planning a charity drag performance to be held at Legacy Hall. Proceeds from the event would benefit the Trevor Project, an organization dedicated to suicide prevention in the LGBTQ+ community.

But eleven days before the performance’s scheduled date, the university’s President, Walter Wendler, canceled the event. In a lengthy public statement, Wendler announced that “West Texas A&M will not host a drag show on campus,” even while conceding that drag performance is “artistic expression” and that “the law of the land” requires him to let the show go on. According to Wendler, he opposes drag’s underlying “ideology,” believing it “demeans” women and that there is “no such thing” as a “harmless drag show.”

West Texas A&M President cancels student charity drag show for second time

West Texas A&M President Wendler enforced his unconstitutional prior restraint by canceling a student-organized charity drag show for the second time.

Read More

That’s when FIRE stepped in. Our country’s universities are bastions of free expression, exploration, and self-discovery. They are uniquely places where young adults may have their opinions tested and viewpoints expanded. And the Constitution prohibits university officials from censoring student expression on campus because they happen to disagree with its underlying message.

That was what the Fifth Circuit panel held when it heard this case on appeal. Yet several weeks later, the court decided to vacate the panel’s decision and consider the case a second time. So the fight to preserve First Amendment protections for students’ artistic performance, regardless of whether university officials agree with the message, continues.

Last week, a bipartisan coalition of university professors, prominent legal scholars, and no fewer than thirteen organizations filed five amicus briefs in support of Spectrum WT:
- The ACLU of Texas and Equality Texas highlight the district court’s doctrinal errors in upholding Wendler’s blanket drag ban, including the court’s failure to recognize the message, history, and context of drag performance and its reliance on a standard for protected expression the Supreme Court has explicitly rejected. As the ACLU of Texas and Equality Texas explain: “The district court’s narrowing of the First Amendment’s protective scope sets an alarming precedent, which, if left uncorrected, could extend beyond the drag performance at issue in this case.”
- The First Amendment Lawyers Association argues that the lower court’s decision violates the “bedrock First Amendment principle” that government officials may not censor speech merely because they dislike the message. They emphasize how this violation is even more egregious in the university setting, “where speech rights are particularly important.” As FALA describes, Wendler “suppressed protected speech, impoverished public discourse, and denied students and the broader community the right to engage, critique, and learn in a free marketplace of ideas.”
- The National Coalition Against Censorship, Dramatists Guild of America, Comic Book Legal Defense Fund, Fashion Law Institute, Authors Guild, Woodhull Freedom Foundation, Freedom to Read Foundation, American Booksellers Association, and Americans United for Separation of Church and State emphasize the evidence establishing that Wendler’s blanket prohibition was inherently a viewpoint-based prior restraint that finds no support in First Amendment law. They argue that Wendler’s prohibition is, in fact, “a ‘classic’ example of a prior restraint” that is “unmoored from any objective standards” constraining his censorship authority. As they explain, such prior restraints are unconstitutional as reflected in the “text, history, and tradition of the First Amendment.”
- The CATO Institute and renowned legal scholars Eugene Volokh and Dale Carpenter describe the applicable legal doctrine to explain why it ultimately does not matter whether Legacy Hall is classified as a limited public forum or nonpublic forum: because Wendler’s viewpoint discrimination is impermissible everywhere. They argue that drag performance is clearly protected expression under the First Amendment and that Wendler violated that protection by censoring drag performance because he disagrees with its message.
- A coalition of eight professors specializing in LGBTQ+ studies delve into the history of drag performance as artistic expression. They describe how drag has long existed as a medium to celebrate the LGBTQ+ community and defy gender norms and stereotypes. They argue that its message is unmistakable among the general public, and that Wendler’s sole motivation in censoring this artistic expression was his personal disagreement with that message.
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December 11, 2025
VICTORY: Federal court halts Texas’ ‘no First Amendment after dark’ campus speech ban
AUSTIN, Texas, Oct. 14, 2025 — A federal judge today issued a preliminary injunction blocking the University of Texas System from enforcing a new Texas law that bans virtually all protected expression on public university campuses after dark.

In his ruling, Judge David Alan Ezra of the U.S. District Court for the Western District of Texas found that students challenging the law on First Amendment grounds were likely to succeed on the merits, and blocked the law from going into effect while the case makes its way through the courts.

“The First Amendment does not have a bedtime of 10:00 p.m.,” the District Court held. “The burden is on the government to prove that its actions are narrowly tailored to achieve a compelling governmental interest. It has not done so.”

“Today’s ruling is a victory not only for our plaintiffs, but all of those who express themselves on college campuses across Texas,” said Foundation for Individual Rights and Expression senior supervising attorney JT Morris. “The First Amendment protects their freedom of speech on campus, every hour of the day, every week of the year.”

Passed in the wake of several protests over the Israeli-Palestinian conflict, Senate Bill 2972 reversed Texas’s previously strong statute enshrining campus free speech protections into state law, and would have forced public universities to ban “expressive activities” from 10 p.m. to 8 a.m., which it defined as “any speech or expressive conduct protected by the First Amendment.”

That’s a shockingly sweeping ban that would have empowered colleges to punish everything from wearing a T-shirt with a message, to writing an op-ed, to playing music — even worship. That’s an intolerable attack on freedom of speech at public universities, where First Amendment protections must remain indispensable.

“Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation,” said FIRE senior attorney Adam Steinbaugh. “We’re thankful that the court stepped in and halted a speech ban that inevitably would’ve been weaponized to censor speech that administrators disagreed with.”

Another provision from Texas’ law required public universities to ban students from inviting outside speakers, or using amplified sound or percussive instruments during the last two weeks of any academic term. FIRE challenged those provisions on behalf of a diverse group of student groups and organizations who would be adversely affected if Texas’s law was allowed to go into effect on UT System campuses:
- The Fellowship of Christian University Students (FOCUS) at UT-Dallas, a campus ministry group whose evening prayer gatherings and guest‑led services would be curtailed by the law’s nighttime ban on “expressive activities” and its ban on invited speakers.
- The Retrograde, an independent student newspaper at UT-Dallas whose newsgathering, writing, and posting often occur after 10 p.m.
- Young Americans for Liberty, an Austin-based, pro-liberty nonprofit with campus chapters throughout Texas that organize petitions, protests, and speaker events. (FIRE is also representing Zall Arvandi, a student member of YAL who attends UT-Austin).
- Texas Society of Unconventional Drummers, a UT-Austin student percussion performance group known for their end‑of‑semester shows that would be barred by the law’s ban on percussion during finals week.
- Strings Attached, a UT-Dallas student music group that stages public concerts — including in the final two weeks of term and sometimes using amplification.
The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE recognizes that colleges and universities play a vital role in preserving free thought within a free society. To this end, we place a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses, including freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

CONTACT:

Alex Griswold, Communications Campaign Manager, FIRE: 215-717-3473; [email protected]
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October 14, 2025
California wants to make platforms pay for offensive user posts. The First Amendment and Section 230 say otherwise.

This week, FIRE wrote to California Governor Gavin Newsom, urging him to veto SB 771, a bill that would allow users and government enforcers to sue large social media platforms for enormous sums if their algorithms relay user-generated content that contributes to violation of certain civil rights laws.

Obviously, platforms are going to have a difficult time knowing if any given post might later be alleged to have violated a civil rights law. So to avoid the risk of huge penalties, they will simply suppress any content (and user) that is hateful or controversial — even when it is fully protected by the First Amendment.

And that’s exactly what the California legislature wants. In its bill analysis, the staff of the Senate Judiciary Committee chair made clear that their goal was not just to target unlawful speech, but to make platforms wary of hosting “hate speech” more generally:

This cause of action is intended to impose meaningful consequences on social media platforms that continue to push hate speech . . . to provide a meaningful incentive for social media platforms to pay more attention to hate speech . . . and to be more diligent about not serving such content.

Supporters have tried to evade SB 771’s First Amendment and Section 230 concerns, largely by obfuscating what the bill actually does. To hear them tell it, SB 711 doesn’t create any new liability, it just holds social media companies responsible if their algorithms aid and abet a violation of civil rights law, which is already illegal.

But if you look just a little bit closer, that explanation doesn’t quite hold up. To understand why, it’s important to clarify what “aiding and abetting” liability is. Fortunately, the Supreme Court explained this just recently — and in a case also about social media algorithms to boot.

In Twitter v. Taamneh, the plaintiffs claimed that social media platforms had aided and abetted acts of terrorism by algorithmically arranging, promoting, and connecting users to ISIS content, and by failing to prevent ISIS from using their services after being made aware of the unlawful use.

The Supreme Court ruled that they had not successfully made out a claim. Because aiding and abetting requires not just awareness of the wrongful goals, but also a “conscious intent to participate in, and actively further, the specific wrongful act.” All the social media platforms had done was create a communications infrastructure, which treated ISIS content just like any other content — and that is not enough.

California law also requires knowledge, intent, and active assistance to be liable for aiding. But nobody really thinks the platforms have designed their algorithms to facilitate civil rights violations. So SB 771 has a problem. Under the existing standard, it’s never going to do anything, which is obviously not what its supporters intend. Therefore, they hope to create a new form of liability — recklessly aiding and abetting — for when platforms know there’s a serious risk of harm and choose to ignore it.

But wait, there’s more.

SB 771 also says that, by law, platforms are considered to have actual knowledge of how their algorithms interact with every user, including why every single piece of content will or will not be shown to them. This is just another way of saying that every platform knows there’s a chance users will be exposed to harmful content. All that’s left is for users to show that a platform consciously ignored that risk.

That will be trivially easy. Here’s the argument: the platform knew of the risk and still deployed the algorithm instead of trying to make it “safer.”

Soon, social media platforms will be liable solely for using an “unsafe” algorithm, even if they were entirely unaware of the offending content, let alone have any reason to think it’s unlawful.

But the First Amendment requires that any liability for distributing speech must require the distributor to have knowledge of the expression’s nature and character. Otherwise, nobody would be able to distribute expression they haven’t inspected, which would “would tend to restrict the public’s access to [expression] the State could not constitutionally suppress directly.” Unfortunately for California, the very goal they want SB 771 to accomplish is what makes it unconstitutional.

And this liability is not restricted to content recommendation algorithms (though it would still be unconstitutional if it were). SB 771 doesn’t define “algorithm” beyond the function of “relay[ing] content to users.” But every piece of content on social media, whether in a chronological or recommendation-based feed, is displayed to users using an algorithm. So SB 771 will impose liability every time any piece of content is shown on social media to any user.

This is where Section 230 also has something to say. One of the most consequential laws governing the internet, Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and prohibits states from imposing any liability inconsistent with it. In other words, the creator of the unlawful content is responsible for it, not the service they used to do so. Section 230 has been critical to the internet’s speech-enabling character. Without it, hosting the speech of others at any meaningful scale would be far too risky.

SB 771 tries to make an end-run around Section 230 by providing that “deploying an algorithm that relays content to users may be considered to be an act of the platform independent from the message of the content relayed.” In other words, California is trying to redefine the liability: “we’re not treating you as the publisher of that speech, we’re just holding you liable for what your algorithm does.”

But there can be no liability without the content relayed by the algorithm. By itself, the algorithm does not cause any harm recognized by law. It’s the user-generated content that causes the ostensible civil rights violation.

And that’s not to mention the fact that because all social media content is relayed by algorithm, it would effectively nullify Section 230 by imposing liability on all content. California cannot evade federal law by waving a magic wand and declaring the thing Section 230 protects to be something else.

Newsom has until October 13 to make a decision. If signed, the law takes effect on Jan. 1, 2027, and in the interim, other states will likely follow suit. The result will be a less free Internet, and less free speech — until the courts inevitably strike down SB 771 after costly, wasteful litigation. Newsom must not let it come to that. The best time to avoid violating the First Amendment is now.

The second best time is also now.

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October 11, 2025
Arkansas wants to jail librarians. The First Amendment won’t allow it.

Arkansas is trying to save one of the most extreme book censorship laws in recent memory, one that would allow jailing librarians and booksellers for keeping materials on their shelves that fall under the statute’s broad definition of “harmful to minors.”

The state’s Act 372 not only makes it possible for librarians to be jailed for providing teenagers with Romeo and Juliet, but also allows anyone to “challenge the appropriateness” of any book in a library.

After the law passed, a coalition of booksellers, librarians, libraries, library patrons, and professional associations persuaded a federal judge to stop the law from taking effect in Fayetteville Public Library v. Crawford County. But the state appealed. FIRE in turn submitted a friend-of-the-court brief urging the U.S. Court of Appeals for the Eighth Circuit to affirm the permanent injunction against Act 372.

How Act 372 operates

Arkansas’s law compels public libraries to adopt policies allowing “any person affected” by a book to challenge its “appropriateness,” forcing libraries to remove or sequester the book in an area “not accessible to minors” if the challenge succeeds. The law provides no definitions for crucial terms like “appropriateness” or “accessible,” leaving librarians to guess how to comply and inviting challenges based on personal or political objections.

Worse still, the process creates a one-way ratchet in favor of censorship by granting challengers the right to appeal decisions to keep a book in place while having no appeal procedure when a book is removed or segregated. FIRE advocates for a fair system — call it “due process for books” — where libraries use an impartial and objective process for reviewing challenged books’ educational value and age appropriateness. And a system that permits only one side to appeal a ruling while denying appeals by the other is inherently unfair, as we’ve noted in campus Title IX hearings. Act 372’s unbalanced system empowers hecklers to reshape public collections according to their tastes, undermining libraries’ historic role as repositories of diverse ideas and viewpoints.

These issues are worsened by a broad and unconstitutional definition of “harmful to minors.” That section threatens librarians and booksellers with up to a year in jail if they furnish, present, provide, make available, give, lend, show, advertise, or distribute to a minor any material considered harmful—without distinguishing between materials inappropriate for young children and those suitable for older teens. By grouping all minors into one category and failing to define key terms, Act 372 effectively criminalizes access to classic and educational works that may include mature themes.

Why Act 372 is unconstitutional

FIRE has consistently stated it’s entirely proper for public school libraries to consider whether books are age-appropriate for their collections based on various factors. But Act 372 falls far short of that commonsense standard by employing a broad definition that applies to all public libraries, as well as private bookstores, and by treating all minors the same, from first graders to high school seniors.

To understand why Act 372’s “harmful to minors” definition does not meet constitutional standards, one must consider the Supreme Court’s precedents in this area. For decades, the Court has been cautious to ensure that merely labeling sexually suggestive materials as obscene does not give the government blanket authority to censor speech. That’s because works that are obscene are considered unprotected speech—for both adults and minors—and essentially freely regulable or sanctionable. But what about sexually explicit material that is not obscene and thus protected?

In Ginsberg v. New York, the Court recognized the state’s limited power to restrict minors’ access to sexually explicit content, while emphasizing it remains constitutionally protected for adults. In Miller v. California, the Court formulated a rigorous test for obscenity that ensured works with serious literary, artistic, political, or scientific value would not meet the test simply because they involve sex. Taken together, Ginsberg, Miller, and cases flowing from them acknowledge that states may use a variable obscenity test based on the viewer’s age, while ensuring that adults can access non-obscene materials.

The Supreme Court further clarified the issue in Virginia v. American Booksellers Association, where it cautioned against laws that aim to protect minors but could potentially limit free speech. The law in question survived only after the Virginia Supreme Court narrowed its definition of “harmful to juveniles” to cover works judged as harmful to older teens, and only when someone knowingly put that material where kids could easily see it. Without this clarification, the law would have been unconstitutionally overbroad and vague.

The standard for obscene-for-minors or “harmful to minors” material has thus generally coalesced around a version of the Miller obscenity test tailored to the underaged to require that: the material taken as a whole must appeal primarily to a prurient interest in sex as to minors; it must portray hardcore sexual conduct in a manner patently offensive to the average adult under contemporary community standards for minors; and it must lack serious literary, artistic, political or scientific value for minors.

Unlike the Virginia Supreme Court, the Arkansas Supreme Court adopted a much broader interpretation of “harmful to minors” that treats all minors under 18 the same. As a result, libraries and local bookstores could be penalized simply for providing older minors with access to books that would be objectionable only to the youngest children. In other words, books older minors have a right to read under the First Amendment.

This would require librarians to put classics like Romeo and Juliet or Catcher in the Rye behind adults-only walls. Further, Act 372’s challenge system also subjects the availability of library books to a “heckler’s veto” by anyone who objects to the material. But the very purpose of public libraries is to provide everyone access to a broad marketplace of ideas. If Act 372 stands, librarians will be forced to choose between their professional duty to provide the community with a wide range of books and the threat of imprisonment if any of those books might be inappropriate for a 5-year-old.

What’s at stake

FIRE is asking the Eighth Circuit to affirm the district court’s ruling striking down Arkansas’s Act 372, because if the state can jail librarians for letting kids read books, it won’t stop at Arkansas. The First Amendment doesn’t allow governments to censor ideas under the guise of “protecting children,” and we’re fighting to make sure it never does.

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October 10, 2025
LAWSUIT: Texas bans the First Amendment at public universities after dark
AUSTIN, Texas, Sept. 3, 2025 — The Foundation for Individual Rights and Expression filed a lawsuit today to stop enforcement of a new, unconstitutional law that turns every public university in Texas into a speech-free zone starting at 10 p.m. every day. FIRE is suing the University of Texas System on behalf of student musicians, journalists, political organizers, and religious students who span the ideological spectrum, all of whom the new Texas law threatens to silence.

“The First Amendment doesn’t set when the sun goes down,” said FIRE senior supervising attorney JT Morris. “University students have expressive freedom whether it’s midnight or midday, and Texas can’t just legislate those constitutional protections out of existence.”

In 2019, Texas was a national leader in protecting student speech, passing a robust law enshrining free speech on public university campuses. But after a series of high-profile protests over the Israeli-Palestinian conflict in 2024, the Texas legislature reversed course and passed Senate Bill 2972, transforming the speech-protective 2019 law into one mandating that the state’s public universities and colleges impose a host of sweeping censorship measures.

FIRE’s lawsuit is challenging two major provisions of the law, which went into effect on Sept. 1. The first requires public universities in Texas to ban all “expressive activities” on campus between the hours of 10 p.m. and 8 a.m., which the law defines as “any speech or expressive conduct protected by the First Amendment.”

That is a shocking prohibition of protected speech at public universities. Under the new law, universities now have the power to discipline students at nighttime for wearing a hat with a political message, playing music, writing an op-ed, attending candlelight vigils — even just chatting with friends.

“This law gives campus administrators a blank check to punish speech, and that authority will inevitably be used to target unpopular speech,” said FIRE attorney Adam Steinbaugh. “Administrators have plenty of ways to prevent disruptive conduct that do not involve such a broad censorship mandate.”

FIRE is also challenging the law’s mandate that universities ban student groups from a host of protected expression during the last two weeks of any semester or term, including inviting guest speakers, using amplified sound, or playing a drum. The Fellowship of Christian University Students at UT-Dallas, for example, would be unable to invite an off-campus minister to lead a prayer during finals.

“Our organization gives students on campus a place to worship with one another and hear from Christian leaders,” said FOCUS committee chair Juke Matthews. “For many of them, this is their church away from home. This law would yank away part of their support system right at the most stressful time of the term.”

COURTESY PHOTOS OF STUDENT CLIENTS FOR MEDIA USE

If state officials and campus administrators want to regulate disruptive speech, the First Amendment demands that they narrowly tailor any such regulation. But Texas’ blanket ban makes no distinctions about the noise level or location of the expression. The Texas law would permit a tuba concert during finals weeks, but not one with drums. And the law exempts “commercial speech” from its sweeping bans on speech. So Texas students are free to advertise t-shirts featuring the First Amendment after hours… but could face discipline for wearing them.

FIRE is suing on behalf of a diverse group of students and student organizations whose speech the new Texas law will harm. Along with the UT-Dallas chapter of FOCUS, other plaintiffs include:
- Young Americans for Liberty is an Austin-based national grassroots organization for students who want to advance the cause of liberty. Many of their student members at Texas universities engage in protests, petitions, and “Free Speech Balls” that traditionally take place during evening hours. FIRE is also representing an individual YAL member who attends UT-Austin and would personally face punishment for inviting YAL speakers in the final weeks of term or for sharing his political opinions at the wrong hour.
- The Society of Unconventional Drummers is a registered student organization at UT-Austin that puts on performances throughout the term, including at the end of each semester. Texas’s arbitrary rule banning percussion the last two weeks of any semester would force the students to cancel one of their most popular shows.
- Strings Attached is a student music group that holds public performances on UT-Dallas’s campus, including in the final two weeks of term. Some of their concerts take place after hours or during the day with sound amplification, both of which could fall afoul of the Texas law’s sweeping bans.
- The Retrograde is a new, independent student newspaper that serves the UT-Dallas community. Whether it’s writing a story, emailing sources, editing a column, much of its staff’s newsgathering and reporting necessarily happens after Texas’ 10 p.m. free speech cutoff.
“Under these new rules, we’re at risk of being shut down simply for posting breaking news as it happens,” said Retrograde Editor-in-Chief Gregorio Olivares. “With that threat hanging over our heads, many student journalists across the UT system face the impossible decision between self-censorship and running a story that criticizes the powers on campus.”

FIRE’s clients will ask the U.S. District Court for the Western District of Texas to issue a preliminary injunction to prevent UT’s new speech bans from taking effect. The defendants in the lawsuit include the members of the UT System Board of Regents, UT System Chancellor John M. Zerwas, UT-Austin President Jim Davis, and UT-Dallas President Prabhas V. Moghe.

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE recognizes that colleges and universities play a vital role in preserving free thought within a free society. To this end, we place a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses, including freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

CONTACT:

Alex Griswold, Communications Campaign Manager, FIRE: 215-717-3473; [email protected]
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September 3, 2025
Civil rights, hate speech, and the First Amendment

We know the First Amendment protects hate speech. But has it always done so? And how have civil rights groups responded when their members are the target of hate speech?

University of Iowa Law Professor Samantha Barbas is the author of a new law review article, “How American Civil Rights Groups Defeated Hate Speech Laws.”

Timestamps:

00:00 Intro

04:04 “The Birth of a Nation” movie controversy

12:44 Henry Ford’s anti-Semitic “Dearborn Independent”

22:41 American Jewish Committee’s “quarantining” solution

28:41 ACLU’s Eleanor Holmes Norton defending a racist in court

33:42 Racist Senate candidate J.B. Stoner

37:28 Neo-Nazis and Skokie

47:20 Why are college students afraid of saying “the wrong thing?”

52:31 Barbas’ favorite free speech literature

53:15 Barbas’ free speech hero

Read the transcript here: https://www.thefire.org/research-learn/so-speak-podcast-transcript-civil-rights-hate-speech-and-first-amendment.

Enjoy listening to the podcast? Donate to FIRE today and get exclusive content like member webinars, special episodes, and more. If you became a FIRE Member through a donation to FIRE at thefire.org and would like access to Substack’s paid subscriber podcast feed, please email [email protected].

Show notes:

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August 28, 2025
Fifth Circuit: First Amendment protects drag show from campus censors

On March 20, 2023, the students of Spectrum WT — an LGBTQ+ organization at West Texas A&M University — were in the final stages of preparing a charity drag show when University President Walter Wendler sent a community-wide email unilaterally banning all drag shows from campus. In his email, Wendler derided drag shows as “misogynistic,” and enacted the ban despite acknowledging that “the law of the land appears to require” him to allow the show to go on.

On Aug. 18, 2025, the U.S. Court of Appeals for the Fifth Circuit confirmed that, indeed, it does. The 2-1 panel opinion overturned the trial court’s denial of Spectrum WT’s motion for a preliminary injunction and ordered the lower court to block Wendler from enforcing the drag ban while the case proceeds. The court held the students are substantially likely to prevail on the merits of their claims that singling out drag performances to ban them from a campus theater, otherwise open to students and the public alike, violates the right to free speech.

To start, the court affirmed that the First Amendment protects drag performance — just as it protects other theatrical performance — rejecting the trial court’s holding that drag shows constitute nonexpressive conduct outside the First Amendment’s protection. The appeals court explained that like the “unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll,” art, whether painted, sung, or performed on stage, is expressive as so long as it is “evident that conveying some message, even if nearly opaque or perhaps smeared, was intended.”

Spectrum WT’s drag show passes that test, the court explained, because “the message sent by parading on a theater stage in the attire of the opposite sex,” in support for the LGBTQ+ community, “would have been unmistakable” to its ticketed audience.

The second question the court considered was whether the university could lawfully keep Spectrum WT’s drag show out of Legacy Hall, a performance venue the college allows both students and outside groups to rent for expressive events like magic shows, beauty pageants, and even a past drag show. Here, again, the court sided with Spectrum WT. The court conducted a public forum analysis, which examines the underlying purposes and practices of government property to determine what restrictions officials can place on protected expression in the property.

The court noted that the university had let pretty much anyone beside the plaintiffs use Legacy Hall for expressive events, including, “a local church group’s ‘Community Night of Worship and Prayer,’ a congressional candidate forum, a local high school’s ‘Casino Night’ dance, a local nonprofit’s benefit gala, Randall County’s livestock show, and a religious retreat center’s event dinner.”

Because President Wendler singled out a particular type of expression to exclude from a space WTAMU generally opens to third parties for expressive use, his drag ban must survive strict scrutiny, the toughest level of judicial review. And because Wendler made no attempt to overcome strict scrutiny, the court held “the plaintiffs are entitled to an injunction protecting their rights, and the district court erred in concluding otherwise.”

Spectrum WT’s legal battle may not be completely over, as the case waits to return to the trial court, but this opinion represents a real victory for all students at West Texas A&M, reaffirming the First Amendment principles that protect their free speech rights on campus. It’s also another victory for students across Texas — where drag performance bans have become all too common — whose abilities to express themselves shouldn’t be subject to the whims of censorial college administrators.

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August 26, 2025
Commercial speech and the First Amendment

Imagine the government forcing you to label your
all-natural milk product as “imitation.”

Florida tried to make one dairy farm do just that,
sparking a First Amendment question: Where’s the line between a
business’s right to speak and protecting consumers from
deception?

In this episode, we explore how far free speech
protections go for commercial speech with:

Timestamps:

00:00 Intro

05:03 What exactly is commercial speech?

08:25 The evolution of commercial speech law

13:59 Early regulation of commercial speech

23:03 What is false or misleading commercial
speech?

26:04 Controversial regulations of non-misleading
commercial speech

37:35 Future of commercial speech regulations

Read the transcript:
https://www.thefire.org/research-learn/so-speak-podcast-transcript-state-commercial-speech

Coming up: Live episode of So To Speak

On Monday, August 11th at 4 p.m. Eastern Time, Nico
will be speaking with former Treasury Secretary/Harvard University
president,
Larry Summers, and FIRE President/CEO,
Greg Lukianoff. They will discuss the Trump
administration’s campaign against elite universities, including
Harvard, what outcomes we can expect from that campaign, and what
those outcomes might mean for free speech, academic freedom, and
university independence.

Register for the livestream here:
https://thefire-org.zoom.us/webinar/register/5817544039734/WN_AISudjopTvu2Yzk2pXkDYg.

Enjoy listening to the podcast? Donate to FIRE today and
get exclusive content like member webinars, special episodes, and
more. If you became a FIRE Member
through a donation to FIRE at thefire.org and would like access to
Substack’s paid subscriber podcast feed, please email [email protected].

Show notes:

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August 6, 2025
Pennsylvania officers face First Amendment lawsuit for trying to criminalize profanity and using patrol car to chase man who recorded police

ALLENTOWN, Pa., July 23, 2025 — In a bizarre scene, a police officer in Allentown, Pennsylvania, drove his patrol cruiser down a sidewalk at a man who was protesting police misconduct by filming outside a police station.

Today the Foundation for Individual Rights and Expression filed a lawsuit defending Phil Rishel’s rights to film and criticize police activity in public spaces — behavior that is protected by the First Amendment — without being assaulted or retaliated against for doing so.

“The retaliation over my speech confirms that there is a huge issue with the culture of the Allentown Police Department,” said Phil. “These officers have a disdain for the rights of the people they’re sworn to protect — and I hope my lawsuit changes things for the better.”

Since 2015, the City of Allentown, Pennsylvania, has paid at least $2 million related to claims of police misconduct. In 2023, Phil began protesting in Allentown by non-disruptively recording police activity while standing on public sidewalks outside local police precincts.

COURTESY PHOTOS OF PHIL RISHEL

On March 26, 2024, Phil went to the Hamilton Street police station, where he stood on a public sidewalk and recorded what he could see in plain view. Approximately 15 minutes after he arrived, an officer approached him and briefly paused while looking at a “No Trespassing” sign. Phil responded, “Yeah, that’s a nice sign. Too bad it doesn’t apply to the public sidewalk.” The officer then silently walked away from Phil into the depths of the garage and up a vehicle ramp. Phil called out after him about his disregard of a sign next to the ramp that read: “PEDESTRIANS MUST USE STAIRS ONLY.”

About 10 minutes later, the officer drove his patrol car out of the garage and sharply turned onto the sidewalk towards Phil while blaring the siren. The officer pursued him down the sidewalk, even driving around a lamppost in his way and back onto the sidewalk to chase Phil. The officer then exited the car, went into the office, and emerged with a police sergeant. They accused Phil of loitering and banned him from the public sidewalk under threat of arrest.

WATCH THE VIDEO FOOTAGE

The next day, Phil returned to the same public sidewalk outside the Hamilton Street station’s parking garage and picked up where he left off, recording police activity in plain view. The same sergeant threatened to arrest him for returning and told him that filming the police “is not a First Amendment right,” while also claiming that Phil’s profanity the previous day constituted disorderly conduct. Ultimately, he charged Phil with disorderly conduct and loitering via a criminal citation sent in the mail.

At the hearing on the criminal charge, the sergeant testified that Phil was in an area closed for construction and blocked pedestrian traffic and the parking garage entrance, but none of this was true, as shown by the video Phil took that day. Based on the sergeant’s testimony, the court found Phil guilty on the loitering charge, although the conviction was reversed on appeal. The disorderly conduct charge was dismissed by the lower court based on longstanding Pennsylvania case law.

The First Amendment protects citizens’ right to film police officers and their activities. It also protects individuals who verbally criticize police and their actions, even by cursing or using profane language.

FIRE’s lawsuit seeks to enforce these established constitutional rights for Phil and other Allentown citizens. The complaint seeks a declaration that the Allentown police violated First Amendment rights, an injunction against the City of Allentown for failing to provide adequate training to its police officers about protecting and respecting First Amendment rights, and an award of damages to Phil for the treatment he received.

“Citizens trying to hold police officers accountable should not be punished,” said FIRE attorney Zach Silver. “Public officials, including police officers, must uphold the law and respect citizens’ right to record police and to use harsh language, not bully them into silence.”

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT
Katie Stalcup, Communications Campaign Manager, FIRE: 215-717-3473; [email protected]

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July 23, 2025