Take the Fifth

A very busy en banc calendar for the Fifth Circuit in January 2026, with eight cases being heard on January 20-23. Below I’ll re-run my summaries of the original panel opinions in the cases; and next week I’ll aim to observe each of the arguments and provide brief argument recaps here on Take the Fifth (while also running our appellate practice at Fishman Haygood; something may have to give, and all targets may not get hit).

Tuesday, January 20, 2026 (1:00 p.m.)

• Roake v. Brumley, 24-30706, appeal from M.D. La.
  • Panel opinion (June 20, 2025):
    • Ramirez, J. (Dennis, Haynes, Ramirez), Dennis, J., concurring; First Amendment, Establishment Clause, Free Exercise Clause, ripeness, standing, sovereign immunity
      • Affirming district court judgment of facial unconstitutionality and preliminary injunction of state law requiring display of Ten Commandments in all public school classrooms.
      • In June 2024, Louisiana enacted H.B. 71, mandating the display of the Ten Commandments in every public school classroom by January 1, 2025. The law specifies the size, content, and prominence of the display, includes a historical context statement, and permits additional foundational documents to be shown. Funding for the displays must come from donations, and implementation is entrusted to the Louisiana Board of Elementary and Secondary Education (BESE). The legislature declared its intent to honor American traditions of civic morality and cited Van Orden v. Perry (2005) to support the law’s constitutionality.
      • A coalition of multi-faith and non-religious parents and students sued Louisiana officials under the First Amendment’s Establishment and Free Exercise Clauses, seeking a preliminary injunction. They submitted an expert report from Dr. Steven Green, who found no historical precedent for permanent Ten Commandments displays in public schools. Louisiana moved to dismiss the suit, arguing lack of ripeness, standing, and sovereign immunity. The district court denied Louisiana’s motions and granted the injunction, prompting this appeal.
      • The Fifth Circuit affirmed jurisdiction under 28 U.S.C. § 1292(a)(1) and found the case ripe, as H.B. 71 imposes imminent and concrete requirements. The court rejected Louisiana’s reliance on Staley, noting that unlike in Staley, the challenged law here mandates specific content, display method, and implementation timeline. The plaintiffs face actual hardship—students would be exposed to religious messages in every classroom, and parents’ rights to direct their children’s religious upbringing would be burdened—satisfying both prongs of the ripeness test.
      • The court found that plaintiffs had standing under well-established Establishment Clause precedent, including Schempp, Lee v. Weisman, and Ingebretsen. Students face certain and continuous exposure to government-endorsed religious doctrine, and parents are directly affected. The court distinguished Louisiana’s argument against “offended observer standing,” clarifying that plaintiffs are not merely offended but are subject to coercive religious messaging with no opt-out. The court also noted that Kennedy v. Bremerton did not address or alter standing doctrine.
      • Louisiana claimed sovereign immunity for the BESE members and Superintendent, arguing they lacked enforcement authority. The court rejected this, emphasizing that BESE is required—not merely permitted—to implement H.B. 71 through enforceable rules, and that the Superintendent must carry out those policies. This enforcement connection sufficed under Ex parte Young, which permits suits against state officials for prospective relief where they are connected to enforcing unconstitutional laws.
      • The court upheld the district court’s finding that H.B. 71 likely violates the Establishment Clause under both Stone v. Graham—which struck down a nearly identical Kentucky law—and Kennedy. H.B. 71’s minimal requirements mirror those in Stone, and its legislative history showed a religious, rather than secular, intent. Expert testimony confirmed no longstanding tradition of Ten Commandments displays in public schools. The court affirmed the preliminary injunction, ruling it appropriate given the irreparable harm to First Amendment rights and the lack of public interest in enforcing unconstitutional laws. The district court’s notice requirement to all public schools was also upheld as a fitting remedy.
      • Judge Dennis concurred in full, writing separately to further address “offended observer” standing and the treatment of the Kennedy opinion. First, wrote Judge Dennis, the plaintiffs have standing under the well-established “offended observer” doctrine in Establishment Clause cases, citing Lee v. Weisman and Schempp as clear Supreme Court precedents. This doctrine allows individuals to sue when they are likely to face unwanted exposure to state-sponsored religious expression. The opinion rejects Louisiana’s argument—based on minority views of Justices Thomas and Gorsuch—that such standing is invalid, emphasizing that the majority of the Supreme Court has consistently recognized it. Judge Dennis highlights that in Lee, the Court acknowledged a student’s standing based solely on likely future exposure to a prayer, and Schempp similarly found standing based on exposure to religious exercises, reinforcing that the plaintiffs in the current case meet this standard.
      • Second, Judge Dennis addresses Louisiana’s argument that Kennedy v. Bremerton overruled Stone v. Graham, the case directly on point in striking down classroom displays of the Ten Commandments. Judge Dennis underscores that only the Supreme Court can overturn its own precedents, and Kennedy did not even mention Stone, nor did it reject the broader framework of Establishment Clause jurisprudence. Citing scholars Lupu and Tuttle, Judge Dennis explains that Kennedy merely abandoned the “endorsement test,” an offshoot of Lemon’s second prong, but left intact foundational requirements like secular legislative purpose and prohibitions on advancing religion. Thus, Stone remains controlling, and H.B. 71—a state-mandated, religious display aimed at impressionable public school students—clearly violates the Establishment Clause.
    • Amicus briefs in favor of Louisiana filed by Alaska and Kansas, Kentucky, Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Utah, and West Virginia; Robertson Center for Constitutional Law; Party Lorenzo Sewell and America First Policy Institute; Michael Johnson, Dodie Horton, and Adam Bass; America’s Future, Restoring Liberty Action Committee, LONANG Institute and Conservative Legal Defense and Education Fund; Foundation for Moral Law; The Conscience Project and Mr. Mark David Hall; Family Research Council; Fraternal Order of Eagles
    • Amicus briefs filed in favor of plaintiffs by Interfaith Alliance, National Council of Jewish Women, Central Conference of American Rabbis, Bend the Arc: A Jewish Partnership for Justice and Hindus for Human Rights; Evangelical
    • Lutheran Church in America, General Synod of the United Church of Christ, Baptist Joint Committee for Religious Liberty, Mr. Jihyun Oh, Mr. Sean W. Rowe and Ms. Julia Ayala Harris.
    • Rehearing en banc ordered on October 6, 2025.

• Nathan v. Alamo Heights Independent School District, 25-50695, appeal from W.D. Tex.
  • First Amendment, Establishment Clause, Free Exercise Clause, ripeness, standing, sovereign immunity, en banc
  • W.D. Tex. granted relief to plaintiff challengers of Texas law similar to Louisiana law in Roake. Fifth Circuit ordered initial hearing en banc, to be argued with Roake.

Wednesday, January 21, 2026, 9:00 a.m.

• Holberg v. Guerrero, 21-70010, appeal from N.D. Tex.
  • habeas corpus, Brady violation
  • Panel opinion (March 7, 2025):
    • Higginbotham, J. (Higginbotham, Higginson, Duncan), Duncan, J., dissenting
    • Reversing denial of habeas relief, vacating petitioner’s conviction on capital murder charges, and remanding for further proceedings, based on Brady violation where the State failed to disclose that its critical trial witness was a paid informant.
    • “We pause only to acknowledge that 27 years on death row is a reality dimming the light that ought to attend proceedings where a life is at stake, a stark reminder that the jurisprudence of capital punishment remains a work in progress. The death penalty itself has traversed a torturous path in this country, dragging Ms. Holberg along with it. From the return of capital punishment in the Seventies—paired with a veritable flood of habeas petitions—came attendant efforts to temper the flow. In the service of federalism and management, Congress enlisted the aid of the lower federal courts by routing review of state decisions to the district courts through the gates of the Antiterrorism and Effective Death Penalty Act of 199 (AEDPA). Yet capital punishment cannot survive without adherence to the fundamental constitutional girds securing the right to trial by jury. Ms. Holberg’s 27 years on death row is a showcase of the State’s failure to abide by a core structure of prosecution: the Brady doctrine.”
    • Judge Duncan dissented, focusing on the viciousness of the crime scene and his incredulity at a self-defense theory, and opining that the potential impeachment value of the fact that the key prosecution witness had been a paid informant on unrelated cases was immaterial.
  • Amici curiae: Gender Justice Organizations; Separation of Powers Clinic; Fair and Just Prosecution and Former Prosecutors.
  • En banc rehearing ordered on July 30, 2025.

• Airlines for America v. Department of Transportation, 24-60231, c/w Spirit Airlines, Inc. v. Department of Transportation, 24-60373, petition for review of DOT order
  • administrative law
  • Panel opinion (Jan. 28, 2025):
    • Haynes, J. (Southwick, Haynes, Douglas)
    • Remanding DOT rule requiring up-front disclosure of certain airline fees, on finding that DOT failed to fully comply with the APA (though also finding that DOT did have authority to make such rules, rejecting argument to impose the major questions doctrine).
  • Amici curiae: Chamber of Commerce of the United States of America; Airline Tariff Publishing Company; United States Public Interest Research Group, National Consumers League, American Economic Liberties Project and Consumer Federation of America
  • En banc rehearing ordered on Oct. 2, 2025.

Thursday, January 22, 2026, 9:00 a.m.

• U.S. v. Texas, 24-50149, appeal from W.D. Tex.
  • mootness, immigration, preliminary injunction, standing, preemption, political question
  • Panel opinion (July 3, 2025):
    • Richman, J. (Richman, Oldham, Ramirez). Oldham, J. dissenting
    • In 185 pages of majority and dissenting opinions, dismissing as moot, in part, appeal from grant of preliminary injunction against Texas’s S.B. 4, which prohibits noncitizens from illegally entering or reentering the state, after U.S. voluntarily dismissed its complaint; and affirming preliminary injunction as sought by other plaintiffs.
    • The decision arises from Texas’s Senate Bill 4 (S.B. 4), which criminalizes noncitizens unlawfully entering or reentering Texas (§ 51.02, § 51.03) and empowers state judges to issue removal orders (art. 5B.002). The law was immediately challenged by nonprofit legal organizations (e.g., Las Americas) and El Paso County, prompting a preliminary injunction by the district court, which the State appealed.
    • The U.S. government, which initially sued alongside the nonprofits, voluntarily dismissed its appeal after injunction was granted, leaving only private and local plaintiffs in the appeal against DPS Director Martin.
    • The majority concludes that Las Americas has organizational standing: the law interferes with its core mission of providing legal services to immigrants and forces it to allocate resources responding to S.B. 4, satisfying Havens Realty and organizational-injury standards.
    • Relying on Arizona v. United States, the majority holds that S.B. 4 is likely preempted: federal law occupied the field of immigration regulation, as Congress granted sole authority over entry and removal to the federal government. They also find conflict preemption because the state’s removal scheme conflicts with the federal removal process.
    • The majority determines Las Americas will suffer irreparable injury absent an injunction—lost time to assist clients and resource diversion—and that the balance of equities and public interest favor maintaining the injunction to preserve federal supremacy in immigration matters.
    • The majority rejects Director Martin’s political-question argument, finding the case within Article III jurisdiction. Courts are competent to adjudicate constitutional preemption claims, even when states claim broader authority under the War Clause.
    • Judge Oldham, in dissent, vigorously disputes organizational and associational standing. Citing Alliance for Hippocratic Medicine, he contends that Las Americas lacks direct injury—S.B. 4 imposes no obligations on it—and critics’ generalized mission frustration is insufficient for constitutional standing.
    • Judge Oldham opines that S.B. 4 does not intrude on federal domain and instead harmonizes with federal removal when aliens are handed to federal authorities at legal ports. It faults the majority and district court for issuing a sweeping pre-enforcement injunction rather than targeting specific unconstitutional enforcement actions.
    • Judge Oldham further opines the plaintiffs have not shown irreparable harm—voluntary compliance costs are insufficient—and that the district court ignored the balance of equities. He emphasizes that federal prosecutors, including the Biden and Trump administrations, have alternately supported and opposed Texas’s efforts, showing no conflict with federal foreign policy and no need for injunction.
  • Amici curiae: American Immigration Lawyers Association
  • En banc rehearing ordered on Aug. 29, 2025.

• W.M.M. v. Trump, 25-10534, appeal from N.D. Tex.
  • immigration, due process, Alien Enemies Act, habeas corpus
  • Panel opinion (Sept. 2, 2025):
    • On remand from U.S. Supreme Court’s grant of temporary restraining order halting deportation of petitioners under the Alien Enemies Act, granting preliminary injunction blocking removal of petitioners, leaving in place government’s updated notice of removal, and remanding for further proceedings.
    • Total of 185 pages of majority opinion (48 pp.), opinion dissenting in part (6 pp.), and dissenting opinion (130 pp.).
    • This case returns from the Supreme Court with instructions to decide (1) whether the usual preliminary-injunction factors are met for the petitioners’ habeas claims challenging the President’s March 14, 2025 Proclamation under the Alien Enemies Act (AEA), and (2) whether the Government’s notice of removal satisfies due process. The petitioners—Venezuelan nationals detained as alleged members of the designated foreign terrorist organization Tren de Aragua (TdA)—seek to contest both their designation and the lawfulness of using the AEA, a 1798 statute that applies only during a declared war, an invasion, or a “predatory incursion” by a foreign nation or government.
    • On the scope of judicial review, the court reads Ludecke, Eisentrager, and Jaegeler to mean that while the President’s factual findings under the AEA are not second-guessed, courts retain authority to interpret the statute and to apply that interpretation to the publicly proclaimed facts—e.g., whether there is a “declared war,” an “invasion,” or a “predatory incursion,” and whether the statute’s “foreign nation or government” requirement is met. Related authorities (e.g., Sterling v. Constantin) confirm that even when executive determinations about exigency are conclusive for triggering certain powers, courts still police the lawful bounds of how those powers are used when private rights are at stake.
    • Turning to construction, the court holds that, in the AEA’s original and properly updated sense, “invasion” means an act of war involving the hostile entry of a military force of (or directed by) another nation; “predatory incursion” denotes smaller, organized, armed forays by a foreign power short of full invasion. Drawing on founding-era usage, dictionaries, and historical practice (including Indian wars, privateering, and border raids), the court accepts the Proclamation’s factual assertions but rejects its labels: mass illegal migration, unspecified “irregular warfare,” and drug trafficking as a “weapon” are not modern equivalents of invasion or predatory incursion within the AEA’s meaning. Petitioners are therefore likely to succeed on the merits that the AEA was improperly invoked.
    • As to the “foreign nation or government” element, the Proclamation asserts that the Maduro regime directs TdA’s hostile actions. If the predicate (invasion/incursion) were satisfied, that attribution could meet the AEA’s sovereign-involvement requirement—even though the Proclamation names a terrorist group rather than all Venezuelan nationals. But because the court finds no invasion or predatory incursion, the AEA cannot be used here. The opinion emphasizes that other, potent removal authorities under the Immigration and Nationality Act remain available for TdA members and terrorism-related grounds.
    • On the preliminary-injunction factors, the court finds irreparable harm: unlike the usual Nken presumption, the Government has represented elsewhere that return from removal to El Salvador may be impossible, making later relief ineffective. Balancing the equities and public interest also favors interim relief: there is a strong interest in preventing wrongful removals, and the Government’s assertions about dangerousness presume TdA membership that has not yet been adjudicated for these detainees. Accordingly, the court grants a preliminary injunction barring removals under the AEA only, leaving other lawful removal avenues untouched. Consistent with the Supreme Court’s guidance, relief extends to both the named petitioners and putative class members without requiring a forecast on class certification at this stage.
    • On notice, the Government’s updated procedure now provides notice in a language the detainee understands, information on how to file habeas in the appropriate district, access to counsel information, and a seven-day window before removal. Comparing this to analogous INA practice (no hearing within ten days of a notice to appear), and on an undeveloped record, the court concludes that the revised notice presently satisfies due process—while stressing that this conclusion is provisional. The district court must take evidence on whether more time (e.g., 30 days) is necessary given counsel availability and facility constraints.
    • In sum, the court grants a preliminary injunction preventing removals under the AEA because petitioners are likely to show that neither “invasion” nor “predatory incursion” exists as the statute uses those terms; it upholds, on the current record, the Government’s revised seven-day notice practice; and it remands for further proceedings, including factual development on notice adequacy. If class certification is later denied, the injunction will automatically lapse as to putative class members unless an appeal is timely taken and accepted. Other statutory tools for removing foreign terrorists remain unaffected.
    • Judge Ramirez concurred in part, agreeing that the AEA was not appropriately invoked; and dissented in part, dissenting from the majority’s (plurality’s) holding that the government’s revised notice is adequate. Judge Ramirez agrees that Petitioners are likely to succeed on the merits because Proclamation No. 10903 does not identify an invasion or predatory incursion—actual or threatened—required by the authorizing statute, and the remaining preliminary-injunction factors also favor relief. Dissenting in part, Judge Ramirez would hold the government’s revised notice informative enough but constitutionally inadequate because seven days’ lead time does not afford detainees a realistic opportunity to contact counsel, file habeas petitions, and pursue relief, as due process requires. Unrebutted evidence shows systemic barriers at the Bluebonnet facility and after transfers: attorney video visits must be scheduled days ahead and are frequently canceled; detainees’ phone access can be cut off before moves; pro bono representation is scarce with one-to-four-week waitlists; non-attorney orientation programs and law-library resources are limited; and Bluebonnet detainees lack computer access, forcing reliance on mail that can delay court receipt even when petitions are “filed” under the mailbox rule. Given these constraints, the record supports requiring at least twenty-one days’ notice.
    • Judge Oldham dissented, contending that for 227 years presidents of both parties have possessed broad, largely unreviewable discretion under the Alien Enemies Act (AEA) to respond to declared wars, invasions, or threatened “predatory incursions.” Courts have historically declined to second-guess such determinations because they turn on national-security judgments beyond judicial competence, a principle reflected in Ludecke v. Watkins and echoed in cases giving conclusive effect to executive findings of invasion or insurrection. The majority’s decision to treat President Trump like a civil litigant who must plead facts sufficient to satisfy a judge, the dissent says, breaks with this tradition and aggrandizes the judiciary into multiple “Commanders in Chief.”
    • To ground that view, Judge Oldham recounts the AEA’s founding context: the Quasi-War with France. French privateers preyed on U.S. commerce, the XYZ Affair revealed bribery demands and threats of invasion, and public outrage spurred robust defense measures short of a formal war. Congress enacted the AEA to let the President act not only during declared wars but also upon threatened invasions or predatory incursions—precisely because early America’s vulnerabilities required swift, discretionary executive action based on information that might be secret or predictive. The legislative history shows Congress knowingly used “indefinite” language—covering even threatened incursions—despite Republican objections that it vested sweeping discretion in the President and minimized judicial roles. Although President Adams never invoked the AEA, the statute became a settled tool for emergencies; fears of abuse were addressed politically, not judicially. That design, Judge Oldham contends, still governs.
    • Turning to the present, Judge Oldham describes Tren de Aragua (TdA) as a violent Venezuelan organization that has infiltrated the U.S. amid large-scale migration, committing kidnappings, murders, and attacks on police across multiple states. According to the Proclamation and government declarations, TdA has embedded in shelters and communities, expanding through recruitment and intimidation. Judge Oldham emphasizes incidents in Colorado, Texas, Florida, Illinois, and Georgia as illustrations of a broader, organized threat distinct from “ordinary” crime.
    • Judge Oldham’s dissent further asserts that TdA is entwined with the Venezuelan state: it has infiltrated security services, exerts territorial control, and operates as part of a “hybrid criminal state.” The Biden Administration’s criminal-law approach (e.g., transnational criminal organization designation) proved insufficient; the Trump Administration then designated TdA a foreign terrorist organization and invoked the AEA, proclaiming that Venezuelan TdA members in the U.S. (age 14+) who lack citizenship or LPR status are liable to be apprehended and removed, and that by virtue of membership they are chargeable with hostility.
    • Procedurally, after the Supreme Court held AEA removal challenges must proceed via habeas, the named petitioners filed habeas petitions and sought classwide relief. The Supreme Court temporarily enjoined removals due to notice concerns and remanded for the Fifth Circuit to evaluate (1) preliminary-injunction factors on the AEA merits for the named petitioners and (2) what process is due for class notice. Judge Oldham would deny a merits injunction: the President’s proclamation of invasion/incursion (here, threatened and perpetrated via Venezuela’s use of TdA) is conclusive under Ludecke, Martin v. Mott, Luther v. Borden, the Prize Cases, and Sterling v. Constantin, which together assign these determinations to the political branches.
    • Responding to the majority and amici, Judge Oldham’s dissent says snippets in Ludecke and Eisentrager do not authorize judicial reweighing of invasion facts; “questions of interpretation” mean recognizing the statute’s delegation, not applying Twombly/Iqbal pleading standards to a President. Sterling, properly read, makes the executive’s predicate emergency finding conclusive while allowing judicial review of the legality of particular responsive measures (e.g., takings, due process)—a distinction that preserves review of how powers are used without second-guessing whether the exigency exists. The political question doctrine adds nothing here; statutory reviewability and delegation already resolve the issue.
    • On who qualifies as the “foreign nation or government,” Judge Oldham says it need not be TdA itself: Venezuela satisfies that element, and its use of private actors fits the AEA’s historical understanding (privateers, mercenaries). Lack of letters of marque is immaterial; what matters is sovereign authorization. Disputes that intelligence agencies doubt a Venezuela–TdA nexus cannot overcome the President’s constitutional role and access to sensitive information courts cannot demand or assess.
    • As to individual status, Judge Oldham reads Ludecke to bar challenges to the President’s discretionary choice to remove only a subset of “alien enemies.” Because the hostile nation is Venezuela, all Venezuelan citizens are alien enemies under the Act; narrowing removal to Venezuelan TdA members is an exercise of presidential discretion not subject to judicial second-guessing. Petitioners may contest only whether they are in fact Venezuelan, not whether they are TdA members.
    • Finally, Judge Oldham would hold that petitioners fail the other preliminary-injunction factors. There is no irreparable harm because the government represents it will not remove any alien who files habeas until the petition is adjudicated, preserving effective relief; and even absent the AEA, other authorities (e.g., INA provisions tied to the terrorist-organization designation) could support removal. The balance of equities and public interest favor the Executive’s national-security judgments. Judge Oldham would therefore deny preliminary relief on the AEA merits (while separately addressing notice issues elsewhere) and warns that the majority’s approach replaces two centuries of constitutional structure with judicial supremacy in matters of war and invasion.
  • Amici curiae: Constitutional Accountability Center; Brennan Center for Justice at New York University School of Law; Japanese American Citizens League; Cato Institute; Professor of Law Ilya Somin; Other Asian American and Pacific Islander Organizations; Professor of Law John Dehn; Professor Andrew Kent; Legal Historian Eric L. Muller; Democracy Defenders Fund; South Carolina; Alabama; Professor Geoffrey Corn; Alaska; Arkansas; Former Government Officials; Florida; Georgia; America’s Future; Idaho; Indiana; Iowa; Kansas; Kentucky; Louisiana; Mississippi; Missouri; Montana; Nebraska; North Dakota; Ohio; Oklahoma; South Dakota; Tennessee; Texas; Virginia; West Virginia; Wyoming
  • En banc rehearing ordered on Sept. 30, 2025:
    • In a highly unusual move of separate concurring and dissenting opinions from the grant of the petition for en banc rehearing, Judge Higginson notes at the beginning of his dissent from the grant of en banc rehearing, “It is common when there are separate opinions at the time that the court denies rehearing en banc that other judges will join those opinions. Here, rehearing en banc has been granted. In order to avoid disclosing even part of the vote for that decision (beyond my own), no judges are shown as being in agreement with this opinion.”
    • Judge Ho, ostensibly in reaction to Judge Higginson’s dissent, filed a brief concurrence in the grant of rehearing: “Our colleague opposes rehearing en banc on grounds of delay. But the burden of any delay falls on the Government. And the Government asked for rehearing en banc, rather than seek certiorari in the Supreme Court. Perhaps we could have minimized delay by declaring last year in United States v. Abbott, 110 F.4th 700 (5th Cir. 2024), that the Judiciary has no business telling the Executive that it can’t treat incursions of illegal aliens as an invasion. But we are where we are.”
    • In his dissenting opinion from the grant of rehearing, Judge Higginson argues against further delay through en banc rehearing, stressing that only the Supreme Court can provide a definitive resolution and that postponement would burden other circuits with pending related cases. Citing the statutory allowance for certiorari before judgment, Judge Higginson underscores the urgent national interest in prompt, final review rather than prolonged intermediate litigation.

Friday, Jan. 23, 2026, 9:00 a.m.

• Spectrum WT v. Wendler, 23-10994, appeal from N.D. Tex.
  • First Amendment
  • Panel opinion (Aug. 18, 2025):
    • Southwick, J. (Dennis, Southwick, Ho), Ho, J., dissenting
    • Reversing denial of preliminary injunction against university administration’s cancellation of LGBT+ student organization’s drag show, reversing as to certain defendants and affirming as to others.
    • The case concerns Spectrum WT, an LGBT+ student organization at West Texas A&M University, which planned a charity drag show to raise funds for The Trevor Project. The university had approved the group’s use of Legacy Hall, a campus venue historically open to a wide variety of student and non-student events, including a prior drag show. The event was structured as “PG-13,” with safeguards against lewdness. However, President Walter Wendler canceled the event, claiming drag shows discriminate against women and lack dignity, comparing them to blackface performances. Spectrum WT and its officers sued, alleging violations of their First Amendment rights, and sought a preliminary injunction.
    • The district court denied the injunction. It held that drag shows were not clearly established as expressive conduct under the First Amendment, giving Wendler qualified immunity on damages claims. The court reasoned the plaintiffs had not shown a likelihood of success on the merits or irreparable harm. It deemed Legacy Hall a limited public forum and emphasized the potential lewdness of drag performances. While the court allowed claims for injunctive relief to proceed, it denied preliminary relief, finding the students’ rights not sufficiently clear or immediate to warrant intervention.
    • On appeal, the Fifth Circuit first clarified the standards for preliminary injunctions: plaintiffs must show a likelihood of success on the merits, irreparable injury, a favorable balance of equities, and alignment with public interest. The central issue was whether drag shows constitute protected expressive conduct. The court rejected Wendler’s argument that a “particularized message” must be discernible, citing Hurley v. Irish-American GLIB, which held that expression need not be narrowly articulated to fall under First Amendment protection. It distinguished cases like Spence and FAIR, noting that theater, music, and even nude dancing have long been treated as expressive mediums.
    • The court found the plaintiffs’ drag show clearly expressive. Context was crucial: the event was organized by an LGBT+ group, ticketed, staged, and intended to raise money for LGBT+ suicide prevention. Against that backdrop, the performance unmistakably conveyed solidarity with and support for the LGBT+ community. While not every instance of cross-dressing conveys such meaning, here the message was both intentional and likely to be understood, satisfying First Amendment requirements. The court concluded that drag shows of this nature are expressive conduct and fall within constitutional protection.
    • Turning to forum analysis, the Fifth Circuit held Legacy Hall is a designated public forum, not a limited one. It had been broadly available to student and non-student groups for diverse events, including political forums, religious services, and prior drag shows. Restrictions on speech in designated forums are subject to strict scrutiny. Because Wendler’s ban was content-based—targeting drag shows specifically—it required a compelling justification narrowly tailored to that end. Wendler offered no such justification, and thus the ban failed constitutional scrutiny. The plaintiffs were therefore likely to succeed on the merits.
    • The court also found irreparable harm, noting that loss of First Amendment freedoms, even briefly, constitutes such injury. Plaintiffs showed a real and ongoing threat, as Wendler canceled a subsequent 2024 drag show and declared no drag shows would ever be permitted. Balancing equities and public interest also favored plaintiffs, as injunctions protecting free speech are inherently in the public interest. Accordingly, the Fifth Circuit reversed the district court’s denial of preliminary relief. It ordered an injunction against President Wendler and Dr. Thomas, while dismissing claims against Chancellor Sharp for lack of jurisdiction. The case was remanded for entry of the injunction.
    • Judge Ho, though typically strongly pro-First Amendment, particularly when such challenges are brought by socially conservative groups, dissented. The dissent argues that Spectrum WT’s claim of a First Amendment right to host a drag show at West Texas A&M must fail because Supreme Court precedent, particularly Christian Legal Society v. Martinez (CLS), requires courts to defer to university officials when they regulate student activities in order to preserve an inclusive educational environment. Judge Ho acknowledges personal disagreement with CLS but insists it must be followed, regardless of whether drag shows currently enjoy more cultural approval than the religious activities restricted in that case. He contends that to protect drag shows more than devotional acts would invert the First Amendment, amounting to viewpoint and religious discrimination. In his view, the university president’s determination that drag shows are misogynistic, akin to blackface performances, should be respected just as CLS required respect for policies against discriminatory student groups.
    • The dissent further emphasizes that university officials have historically opposed events they see as sexist, citing both case law and scholarship comparing drag to blackface. It warns that permitting drag shows could create pressure to allow male participation in women’s sports and other women-only spaces, raising concerns about fairness and safety. Unlike in CLS, where officials targeted Christians out of animus, here the record shows evenhanded application of policy and support for LGBT students in other contexts. Spectrum WT was only denied use of a single facility for one event, not expelled as CLS was. Given this, the dissent maintains that under binding precedent, West Texas A&M had the discretion to restrict drag shows to protect women and fulfill its mission, and the majority erred in concluding otherwise.
  • Amici Curiae: Southern Methodist University Dedman School of Law First Amendment Clinic; National Coalition Against Censorship; Secular Student Alliance; Dramatists Guild of America; American Civil Liberties Union of Texas; Comic Book Legal Defense Fund; Equality Texas; Fashion Law Institute; Authors Guild; Woodhull Freedom Foundation; Freedom to Read Foundation; American Booksellers Association; Americans United for Separation of Church and State; Professors Specializing in LGBT+ Studies, LGBT+ Legal Issues, and the History of Drag; First Amendment Lawyers Association; Eugene Volokh; Dale Carpenter; Cato Institute
  • En banc rehearing ordered on Oct. 27, 2025.

• Bay Area Unitarian Universalist Church v. Ogg, 23-20165, appeal from S.D. Tex.
  • First Amendment, standing
  • Panel opinion (April 9, 2025):
    • Dennis, J. (Jones, Dennis, Douglas), Jones, J., dissenting
    • Reversing the district court’s dismissal of the plaintiffs’ First Amendment challenge to Texas’s handgun trespass statutes (Texas Penal Code §§ 30.06 & 30.07). The case involved Bay Area Unitarian Universalist Church and Antidote Coffee, which as private property owners wished to exclude all firearms from their premises but were subject to heightened signage requirements under Texas’s concealed and open carry trespass laws. The district court had dismissed the complaint for lack of Article III standing, concluding the plaintiffs had not shown a concrete injury. Judge Dennis’s majority held that the Church and the coffee shop did have standing because the statutory scheme’s differential treatment of how they must communicate their exclusion of firearms — with more burdensome signage requirements than those for excluding other persons or items — imposed a concrete and ongoing injury traceable to defendants’ enforcement. The panel emphasized that this “asymmetrical treatment” of speech and property-use regulatory burdens was sufficient to establish an injury-in-fact, and that a favorable judicial decision could redress it.
    • Accordingly, the Fifth Circuit reversed the district court’s standing dismissal, vacated the order denying leave to amend, and remanded the case for further proceedings on the merits. The majority did not decide the underlying constitutional claims at that stage but made clear that because the plaintiffs suffered an injury from how the statutory notice regime operates, their challenge could proceed.
    • Judge Jones dissented, contending that the majority erred in finding Article III standing, maintaining that the plaintiffs lacked a concrete and particularized injury traceable to enforcement of Texas’s signage requirements because any alleged harm stemmed from their own strategic choices about how to communicate their exclusion of firearms rather than a legally cognizable injury imposed by the defendants, and thus the district court’s dismissal for lack of standing should have been affirmed rather than reversed.
  • En banc rehearing ordered on Sept. 29, 2025.