United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-50633 FILED May 14, 2025 ____________ Lyle W. Cayce Speech First, Incorporated, Clerk

Plaintiff—Appellant,

versus Brian McCall, in his official capacity as Chancellor of the Texas State University System; Kelly Damphousse, in his official capacity as President of Texas State University; Alexandria Hatcher, in her official capacity as Director of the Office of Equal Opportunity and Title IX for Texas State University; Ken Pierce, in his official capacity as Vice President for Information Technology for Texas State University; Daniel Owen, in his official capacity as Chief Information Security Officer for Texas State University; Earl C. Austin, in his official capacity as a member of the Texas State University System Board of Regents; Garry Crain, in his official capacity as a member of the Texas State University System Board of Regents; Alan L. Tinsley, in his official capacity as a member of the Texas State University System Board of Regents; Charlie Amato, in his official capacity as a member of the Texas State University System Board of Regents; Shelia Faske, in her official capacity as a member of the Texas State University System Board of Regents; Dionicio Flores, in his official capacity as a member of the Texas State University System Board of Regents; Stephen Lee, in his official capacity as a member of the Texas State University System Board of Regents; William F. Scott, in his official capacity as a member of the Texas State University System Board of Regents; Gabriel Webb, in his official capacity as a member of the Texas State University System Board of Regents,

Defendants—Appellees. ______________________________ Case: 23-50633 Document: 100-1 Page: 2 Date Filed: 05/14/2025

Appeal from the United States District Court for the Western District of Texas USDC No. 1:23-CV-411 ______________________________ Before Ho, Duncan, and Oldham, Circuit Judges. James C. Ho, Circuit Judge: “Education should not be intended to make people comfortable; it is meant to make them think.” Comm. on Freedom of Expression, Univ. of Chicago, Report of the Committee on Freedom of Expression (2015) (quoting President Hanna Holborn Gray). But according to Speech First, Texas State University has adopted a harassment policy that reflects the opposite principle—and thus conflicts not only with basic pedagogical principles, but also the First Amendment. Rather than welcome debate, the University prohibits “unwelcome verbal” or “written . . . conduct.” The policy does not define what is “un- welcome,” nor what constitutes “verbal” or “written” “conduct.” But it appears to forbid speech that some individuals or groups could find uncom- fortable—namely, speech about “race, color, national origin, age, sex, reli- gion, disability, veterans’ status, sexual orientation, gender identity, or gen- der expression” that some “reasonable person” could find “offensive” or “hostile.” Speech First contends that this policy will be used to target politically disfavored speech on sensitive topics like abortion, immigration, racial pref- erences in educational admissions, and transgender ideo