Whittington and Cohn Defend Campus Free Speech in Amicus Brief in Focus v. Eltife
On May 27, Keith Whittington, faculty director of Yale Law School’s Center for Academic Freedom and Free Speech (CAFFS) and Joe Cohn, its executive director, filed an amicus brief with the Court of Appeals for the Fifth Circuit in a campus free speech case with national implications.
The case, FOCUS v. Eltife, is an appeal from a district court ruling preliminarily enjoining the enforcement of Texas law that requires public universities in the state to prohibit a wide swath of expressive activities on campus.
One provision of the statute “prohibit[s] ... 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).) The district court referred to this provision as the “Overnight Expression Ban.”
Another provision, deemed the “End-of Term Invited Speaker Ban” by the district court, required those institutions to “prohibit ... during the last two weeks of a semester or term, engaging in expressive activities ... by inviting speakers to speak on campus.” (Tex. Educ. Code § 51.9315(f)(2)(B)(ii).)
Whittington and Cohn’s amicus brief argued that both provisions are unconstitutional because they are overbroad and restrict far too much speech to be considered reasonable time, place, and manner restrictions.
Addressing the Overnight Expression Ban, the amicus brief hammered home the extraordinary breadth of the speech restriction, noting:
“It proscribes all noncommercial expressive activities for nearly half of each day — regardless of where on campus the activity occurs or the manner in which it is conducted. At UT Austin, students walking back from the Perry–Castañeda Library to the Jester West Residence Hall discussing the day’s macroeconomics lecture would violate the Overnight Expression Ban if they did so at 10:01 pm. Nor could students at UT Dallas meet outside the Bioengineering and Sciences Building at 7:30 am to discuss a research project. Student radio and television must halt all broadcasts. Rehearsals for music groups and theater troupes must come to an end. Study groups must go silent."
The brief also states:
“Texas may have an interest in preventing overnight encampments, but S.B. 2972’s overnight ban is not so limited. It goes far beyond that aim, restricting all noncommercial speech during the prescribed hours.”
Whittington and Cohn’s court filing also underscored the magnitude of the censorship imposed by the End-of Term Invited Speaker Ban by setting forth what they consider obvious examples of protected speech caught within its aim:
“The final two weeks of a semester frequently overlap with pivotal events in our society, and the End-of-Term Invited Speaker Ban would bar campus engagement with them. Had it been effective during the final two weeks of the 2026 spring semester, for instance, Republican student groups could not have invited Senator John Cornyn or Attorney General Ken Paxton to speak regarding the runoff for the Republican nomination for the United States Senate — despite the election being mere weeks away. Had it been in effect during the final two weeks of the 2025 fall semester, faith-based organizations could not have invited theologians or clergy to speak about Christmas, Hannukah, or other religious winter holidays.”
Striking down these provisions “is pivotal — not only for universities in Texas, but for those across the country,” the brief concluded. “If this law and the restrictions promulgated pursuant to it are permitted to stand, other states will chart the same course, compounding censorship and diminishing expressive rights on university campuses nationwide.”
Whittington and Cohn said that they are grateful to Griffin Rubin of the Texas law firm Sbaiti & Company PLLC, whose pro bono representation of the pair in their individual capacities made it possible for them to share their analysis of this Texas statute. The amicus brief does not present the institutional views, if any, of Yale Law School, Yale University, or any of its units.
