A lawyer defending Texas’ new college protest law acknowledged Tuesday that a campus policy banning all expressive activity overnight would be difficult to defend under the First Amendment.
But students challenging the law’s constitutionality are arguing the wrong thing and suing the wrong officials, he told federal appeals judges.
The U.S. Court of Appeals for the 5th Circuit heard arguments over Senate Bill 2972, which requires public colleges to restrict expressive activity from 10 p.m. to 8 a.m. and during the final weeks of a semester. A federal judge temporarily blocked key parts of the law last year after students at two University of Texas system campuses sued.
State lawyers are asking the appeals court to overturn that injunction. The students want the court to leave it in place as their challenge to the law continues. Here’s what happened during Tuesday’s hearing and what you need to know:
What happened at Tuesday’s hearing?
Assistant Solicitor General Daniel Ortner argued that SB 2972 does not itself regulate students but requires colleges to adopt their own speech policies, which students could challenge separately.
Ortner also argued the students sued the wrong officials ascampus deans, not UT System officials, are responsible for enforcing student policies.
But when one judge asked whether a college policy banning all overnightexpressive activity would be unconstitutional on its face, Ortner replied that such a policy would be difficult to defend.
Adam Steinbaugh, a senior attorney for the Foundation for Individual Rights and Expression, or FIRE, representing the students, argued the state’s distinction between the law and campus policies makes little practical difference.
SB 2972 says colleges “shall” adopt the restrictions, and the University of Texas at Dallas adopted them nearly word for word, he said.
What does Senate Bill 2972 do?
Known as the Campus Protection Act, the bill requires Texas public colleges to adopt policies barring expressive activity on campus from 10 p.m. to 8 a.m. School policies also must prohibit invited speakers, amplified sound and drums or other percussion during the final two weeks of a semester or term.
Lawmakers passed the measure in 2025 after pro-Palestinian protests swept college campuses nationwide.
Demonstrations intensified after students at Columbia University set up an encampment in April 2024 and later occupied a building. Days later, hundreds of students walked out of the University of Texas at Austin to demand the university system divest from weapons manufacturers supplying Israel. Then UT-Austin President Jay Hartzell called in state troopers, saying he did not want the university to become “the next Columbia.”
Then state Sen. Brandon Creighton, who would later author SB 2972, praised the response.
“The First Amendment does not protect violence or harassment,” he wrote on X on April 24. “What we have seen at Columbia and Harvard are clear and simple harassment against Jewish students.”
The law took effect on Sept. 1, 2025.
Why was the law challenged?
Students and student groups at UT-Austin and UT-Dallas sued, arguing the restrictions on expressive activity overnight and during the last two weeks of a semester are so broad that they could encompass activity that has nothing to do with the kind of protests that prompted the law.
They argue the law could prevent a student journalist from publishing a story from a dorm room at 10:30 p.m.; a Christian group from quietly worshiping with an invited minister; or a percussion group from performing in a space designed for music.
“The Texas Legislature cannot send the First Amendment to bed at 10 p.m.,” FIRE lawyers wrote in a brief.
A federal judge based in Austin sided with the students on Oct. 14, 2025, and temporarily blocked UT System officials from enforcing the challenged provisions. He found the students were likely to succeed on their First Amendment claims and that the restrictions were unconstitutionally broad. UT System officials appealed, leading to Tuesday’s hearing on the injunction.
What are the two sides arguing?
State lawyers argue the law does not itself prohibit students from speaking after 10 p.m. or during finals. Instead, it directs colleges to write campus policies that balance free speech with preventing disruptions to exams, studying and sleep.
They point to the law explicitly noting “nothing in this section may be construed to limit or infringe on a person’s right to freedom of speech or expression protected by the First Amendment.”
State lawyers say UT-Austin does not prohibit all expression across campus overnight, just in common outdoor areas and speech loud enough to be heard in a dorm. Restriction on amplified sound during finals likewise applies to sound that can be heard inside academic, administrative or residential buildings, according to the policy.
Lawyers for the students counter that SB 2972 leaves colleges little discretion: the law says schools “shall adopt” the restrictions and requires disciplinary sanctions.
They argue the law cannot be saved by promises that officials will enforce it responsibly.
“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly,” they wrote, quoting a 2010 U.S. Supreme Court decision.
The two sides also disagree over whether the law treats speech differently based on its content.
Lawyers for the students say it does because it exempts commercial speech, such as selling merchandise or soliciting donations. Lawyers for UT System officials say commercial speech is regulated separately and that the students have not shown the law discriminates based on messaging.
The Texas Tribune partners with Open Campus on higher education coverage.
Disclosure: The University of Texas at Austin has been a major financial supporter of The Texas Tribune. Open Campus has been a financial supporter within the past five years. The Texas Tribune is a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in our journalism. Find a complete list of them and more information about our financial and disclosure policies here.
This article first appeared on The Texas Tribune.
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