Reason.com40%
Federal Judge in Texas Not Wild About Fifth Circuit's Recent Precedent 12%
By Eugene Volokh6%
7/15/2026, 12:29:31 PM
Keywords: Free Speech
BS Summary: This article contains 17 faulty reasoning types, including Confirmation Bias, Negativity Bias, and Straw Man, with Biased Writer Voice as the most egregious example at 22.7% saturation with 218 hits. Analysis detected 974 faulty-reasoning hits from 960 analyzed words, generating a BS Score of 29.1% and a BS Rank of 12% (18,658 of 21,197 articles). This article is better (less manipulative) than 88.00% of the article peer group.
From Judge Mark Pittman (N.D.
Tex.)
Monday in Kirkland v.
O'Hare:
On December 9, 2025, Plaintiff attended an open meeting of the Tarrant County Commissioners Court ("Commissioners Court"), which is the governing body for Defendant Tarrant County.
Plaintiff registered to speak during the public comment period associated with agenda item F1.
Defendant Tim O'Hare ("Judge O'Hare"), County Judge of the Commissioners Court, briefly shushed applause from the audience following the previous speaker's remarks on agenda item F1.
Plaintiff does not allege that he was clapping or that anyone was reprimanded or removed from the meeting for clapping.
Judge O'Hare called Plaintiff to give his remarks to the Commissioners Court.
Plaintiff began by remarking, "Lord, I live in America where people cannot clap.
That is insane to me."
Judge O'Hare stopped Plaintiff's remarks, telling him, "Your time is done.
Sit down.
Go.
It's not commentary on how we run the court.
Your comments are limited to this item.
Take a seat, you're not talking on this one."
Judge O'Hare then called the next speaker.
The next speaker discussed agenda item F1 and began by clearing his throat and apologizing for his sinuses—Plaintiff alleges this speaker was off topic.
During his remarks, this speaker also said that Plaintiff's First Amendment rights had been violated.
Judge O'Hare allowed this speaker to finish without interruption.
Later in the meeting, the same speaker heavily criticized the Commissioners Court's inclusion of an item on the consent agenda but accidentally spoke about the wrong agenda item.
Judge O'Hare permitted the speaker to continue for about one minute before realizing the speaker was off topic and correcting him.
The speaker then continued talking about the correct agenda item.
Plaintiff has not provided the Court with the full text of the Rules of Decorum in effect on December 9, 2025.
According to Plaintiff, the policy bans "personal attacks, impertinent, profane, obscene, or slanderous remarks" and any "actions of approval or disapproval from the audience, such as … clapping … except that orderly clapping during the Proclamations, Resolutions, and Presentations section of the agenda is permissible." …
Plaintiff's complaint, in short, alleges that Defendants deprived him of his First Amendment right to free speech by cutting short his speaking time at the December 9, 2025, Commissioners Court meeting.
Central to this argument is a question of the constitutionality of the Rules of Decorum, which Plaintiff claims are facially unconstitutional.
Viewing the rules in light of the last two hundred years of American legal history and precedent, it is unclear why the Rules are subject to questioning now.
Cf.
Robert's Rules of Order Newly Revised ("The assembly has the right to protect itself from annoyance by nonmembers … [a]t a mass meeting, any person who attempts to disrupt the proceedings in a manner obviously hostile to the announced purpose of the meeting can be treated as a nonmember under the provisions of this paragraph.").
Nevertheless, the Fifth Circuit recently found similar Rules of Decorum in Bossier City, Louisiana to be unconstitutionally ambiguous.
Merriott v.
City of Bossier City (5th Cir.
2026).
The Bossier City Rules read: "Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council."
The Fifth Circuit's opinion is somewhat puzzling, as it appears to require a Cartesian level of certainty regarding the definition of words used pragmatically to maintain order and a civilized courtroom setting.
Gone are the days, it appears, that people understand what is socially acceptable in a public meeting.
Instead, we must define expectations to a level of clarity required by children, presumably because our citizens are too childish to understand the plain meaning of "personal," "impertinent," "slanderous," and "boisterous."
Regardless of the Fifth Circuit's view of our citizens' intelligence, in its own wisdom, it discerned that pedanticism ought to be favored over practical wisdom and the need for judicial discretion within the courtroom setting.
Although this Court sympathizes with Defendants' outrage, the Court is bound by the Fifth Circuit's legal interpretations and, as is expected by both trained legal experts and average citizens, must conform to the opinion's plain meaning.
Here, the Tarrant County Rules of Decorum bans "personal attacks, impertinent, profane, obscene, or slanderous remarks."
While the Bossier City and Tarrant County Rules of Decorum use similar language, the Court hopes that arguments can be made rejecting such an interpretation.
"Freedom of speech is a principal pillar of a free government."
Benjamin Franklin, On Freedom of Speech and the Press, Pa.
Gazette, Nov.
17, 1737.
But, while the First Amendment strongly protects expressive freedoms, courts have long recognized reasonable, viewpoint-neutral restrictions can be imposed in limited public forums, such as commissioner's court meetings.
Such restrictions do not erode free speech because individuals remain free to express their views through alternative channels, including traditional public forums, private property, and digital platforms.
Otherwise, public meetings would devolve into utter chaos and grandstanding rather than accomplishing the work of the people.
Surely, this is not what the founders envisioned when the First Amendment was adopted.
See Heffron v.
International Society for Krishna Consciousness (1981) ("The First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.")
As the Court must resolve multiple questions of law and fact to make a determination, the Parties' arguments are better suited for summary judgment or trial.
Consequently, the [defendants' Motions to Dismiss] are DENIED….
You can read some excerpts from the Merriott precedent that the judge derides in this post (which I'd been meaning to post for a few weeks, but just posted this morning).
Speakers
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41%flagged-word coverageJudge Mark Pittman
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