Texas asked a federal appeals court Tuesday to throw out an injunction blocking parts of its campus speech law, arguing that the students who challenged it sued over the wrong law and the wrong officials. The three-judge Fifth Circuit panel pressed both sides, and the state’s lawyer acknowledged that a campus policy barring all expressive activity overnight would be hard to defend.
Senate Bill 2972, which took effect September 1, 2025, requires Texas public universities to adopt policies barring expressive activity on campus from 10 p.m. to 8 a.m. and banning invited speakers, amplified sound and drums during the last two weeks of a term. Students and student groups at the University of Texas at Austin and UT Dallas sued, represented by the Foundation for Individual Rights and Expression. U.S. District Judge David Alan Ezra blocked the challenged provisions on October 14, 2025, and the UT System appealed.
“Plaintiffs sought an injunction against the wrong law and from the wrong defendants,” Daniel Ortner, an assistant solicitor general, told Judges Edith Brown Clement, Andrew Oldham and Dana Douglas. The law only directs universities to write policies, he argued, so the students should have challenged those campus policies and sued the deans who enforce them, not the regents. “For SB 2972 itself, no one actually enforces it,” Ortner said.
Asked whether a university policy barring expressive activity between 10 p.m. and 8 a.m. would be unconstitutional on its face, Ortner said the district court had skipped the required analysis. Once it is done, he said, “that would be a difficult law to defend, certainly, a policy to defend, certainly.”
Adam Steinbaugh of FIRE opened by arguing that the law “applies to a breathtaking range of speech.” He described a student reporter at UT Dallas who could face discipline for reporting news that breaks after 10 p.m., and a Christian fellowship that could not invite an off-campus minister in the last two weeks of a semester.
The panel pressed him on the state’s main point, that the statute speaks to universities, not to students. “But the students aren’t regulated by the statute?” a judge asked. Ortner later credited Oldham with noting that nothing in the law says students “shall” do anything.
Steinbaugh said UT Dallas adopted the law’s restrictions “wholesale.” A judge asked whether that meant a student could not speak to a roommate at 10:01 p.m., and why FIRE had not simply challenged that policy. “We are challenging the policy,” Steinbaugh said. “The state legislature said jump,” he said later, “and it’s not a question about how high do we jump. The statute tells them how high to jump.”
The panel also questioned what Ezra’s order actually covers. “But the injunction doesn’t apply to the policies at all,” a judge said, noting that it names only the statute. Ortner had told the court that UT Austin is enforcing its own overnight policy. Steinbaugh said the order reaches the campus policies too. “I would not want to be the one who has to tell the chairman of the Board of Regents that he may be in contempt of court,” a judge said during the state’s rebuttal.
Steinbaugh closed by arguing that sending the case back would be “an exercise in futility.” The university’s “time would be better spent on convincing the legislature to withdraw this statute,” he said.
UT Dallas has not enforced its policy since the injunction, Ortner told the court. The panel did not say when it will rule.
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