In the wake of student demonstrations related to the intensification of the Israel-Palestine conflict, Texas amended a 2016 state law originally enacted to promote free speech on campus to add provisions restricting the timing and forms of student expression and assembly. University of Texas ("UT") campuses adopted new policies aligning with the law, including by restricting the time of day students could engage in expressive activities and the period during the semester when students could use amplifiers or invite speakers to campus.
Several student groups at UT Austin and Dallas, including UT Dallas' student newspaper ("the Retrograde"), Young Americans for Liberty, Inc. ("YAL"), and the Fellowship of Christian University Students ("FOCUS") sued, alleging the law violated the First and Fourteenth Amendments to the U.S. Constitution, and sought a preliminary injunction. The U.S. District Court for the Western District of Texas granted plaintiffs' motion, finding that while Texas has a compelling interest in maintaining order on campus, the UT system defendants failed to show that the bans were the least restrictive means of attaining a "safe learning environment" as they were vague and both over- and under-inclusive as written.
What You Need to Know:
- Earlier this year and in response to demonstrations related to the Israel-Palestine conflict, Texas amended an existing campus free speech law to, among other things, prohibit expressive activities between 10 p.m. and 8 a.m. and bar students from inviting speakers to campus or using amplifiers for events during the last two weeks of a semester.
- A number of student groups, including an interdenominational campus ministry that regularly holds late-night and early morning faith discussions and various worship events with amplified sound during the final two weeks of semesters, sued alleging UT's policies violated the First and Fourteenth Amendments.
- The Western District of Texas granted the plaintiffs' motion for a preliminary injunction, finding plaintiffs are likely to succeed on their claim that the law violates the First Amendment because its content-based restrictions are substantially overbroad.
In 2019, Texas enacted a law reinforcing the First Amendment's protections for free expression on university campuses. See S.B. 18, 86th Leg., Reg. Sess. (Tex. 2019). In 2025, Texas amended the law to require universities to adopt policies meant to "prevent disruption and ensure community safety." The amended law (the "Campus Protection Act") – which applies to "any speech or expressive conduct protected by the First Amendment to the United States Constitution" but excludes commercial speech, defamation, and incitement (among other categories of expression typically extended less protection) – contains four provisions relevant here:
- A prohibition on "engaging in expressive activities on campus between the hours of 10 p.m. and 8 a.m." Tex. Educ. Code § 51.9315(f)(2)(F).
- A prohibition "during the last two weeks of a semester or term," on "engaging in expressive activities ... by inviting speakers to speak on campus." Tex. Educ. Code § 51.9315(f)(2)(B)(ii).
- A prohibition "during the last two weeks of a semester or term," on "engaging in expressive activities ... by using a device to amplify sound." Tex. Educ. Code § 51.9315(f)(2)(B)(iii).
- A prohibition "during the last two weeks of a semester or term," on "engaging in expressive activities ... by using drums or other percussive instruments." Tex. Educ. Code § 51.9315(f)(2)(B)(iv).
Despite its expressed beneficial intent, the law was met with opposition from a number of student groups that felt the restrictions unnecessarily and impermissibly curtailed their rights to free speech and expression during the normal course of their activities. For example, the Retrograde's editors gather breaking news on campus overnight and occasionally invite off-campus sources for on-campus interviews during the last two weeks of an academic term. Meanwhile, FOCUS hosts evening fellowship and worship gatherings at which students regularly stay past 10 p.m. and offers early morning one-on-one meetings. Finally, UT student music organizations often engage in end-of-semester performances using amplified sound and have rehearsals that extend beyond 10 p.m.
On these facts, plaintiffs sued to enjoin all four of the Campus Protection Act's provisions. On October 14, 2025, the FOCUS court granted a preliminary injunction preventing enforcement of each of the provisions.
Looking to the statutory history (including online messages by Texas Governor Gregg Abbott discussing on-campus protests), the court determined the provisions were content-based and thus needed to withstand strict scrutiny. For example, the court observed that the statute's "Sponsor's Statement of Intent" referred to "massive disruption" due to April 2024 protests regarding the Israel-Gaza conflict, which Governor Abbott characterized as "antisemitic" while advocating for the arrest and expulsion of student protestors in a July 2024 post on X (formerly Twitter). While the court agreed that the defendants had a compelling interest in "prescrib[ing] and control[ling] conduct in the schools," it found the prohibitions had an "impermissible breadth" – far from the least-restrictive means required.
The court also observed that, in particular, the overnight speech prohibition was both over- and under-inclusive. Notably, expressly banning all expressive activities for ten hours a day with no distinction made based on the level of disruption or location of the speech was overinclusive, while permitting commercial speech – even if disruptive – between the hours of 10 p.m. and 8 a.m., but not any non-commercial speech was underinclusive. In reaching this conclusion, the court noted the "First Amendment does not have a bedtime of 10:00 p.m. 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."
The FOCUS court also found the requirement of irreparable harm satisfied given the potential violations of the plaintiffs' First Amendment rights, and found that the public interest weighed in favor of enjoining an unconstitutional law. Because the plaintiffs satisfied the requisite factors, the court granted their motion for a preliminary injunction. No appeal has been filed yet.
Between shifts in policy at the U.S. Department of Education to a number of global conflicts that have inspired fervent debate on campus, free speech and expression and remaining true to institutional independence will continue to be hot topics for colleges and universities for the foreseeable future. As the FOCUS ruling demonstrates, this sometimes results in institutions being caught between legislators and students with little wiggle room. Despite this difficult position, colleges and universities should be mindful of the ways in which they incorporate legislative acts and political priorities into their student policies to avoid litigation. In light of this reality, colleges and universities should stay apprised of new federal and state regulations and consult their attorneys when any questions – particularly with respect to changes in law and policies – arise.
