Dana El-Kurd

On the last day of its 2024 session, the Supreme Court sent back to the Fifth Circuit a case involving a 2021 Texas law that limited the ability of social media companies to suspend user accounts for extremist or violence-inciting content.

The law was inspired by the decision of what was then called Twitter, and now X, as well as other social media companies, to de-platform Donald Trump after the president encouraged his supporters to ransack the Capitol and stop the counting of electoral college votes on January 6, 2021.

The Fifth Circuit previously upheld the law, claiming that it rejected, quote, the idea that corporations have a freewheeling First Amendment right to censor what people say.

Ho and his allies on the Fifth Circuit, however, are fine with censoring free expression by members of the LGBTQ community.

In March 2023, Walter Wendler, the president of West Texas A&M University, a public institution, canceled a drag show scheduled at Legacy Hall, a campus building.

Organizers plan to use proceeds from the performance to raise money for the Trevor Project, a nonprofit group that seeks to prevent suicides in the LGBTQ plus community.

In a statement canceling the show, Wendler explicitly said that his private religious beliefs guided his decision.

It is wrong.

Spectrum WT, a pro-LGBTQ student organization, filed a suit challenging the ban and requested an injunction blocking Wendler's action.

But Judge Kazmirik, the same jurist who initially blocked access to Mifepristone, sided with West Texas A&M and issued a preliminary ruling preventing the drag show from taking place pending a trial.

He said the performance's supposed sexual content lacked free speech protections.

Quote,

The First Amendment does not prevent school officials from restricting vulgar and lewd conduct that would undermine the school's basic educational mission, particularly in settings where children are physically present, Kaczmarek wrote in his September 22, 2023 opinion.

Spectrum WT appealed.

The case went to the Fifth Circuit, where a three-judge panel heard arguments on whether the fundraiser could proceed.

On August 18, 2025, by a two-to-one vote, the panel reversed Kaczmarek's ruling.

Judge Leslie Southwick, a George W. Bush appointee, and a Bill Clinton-appointed U.S.

Circuit Judge James Dennis ruled that West Texas A&M had violated the gay student organization's expressive rights.

Predictably, Ho dissented.

He simply echoed the arguments used by the university president, insisting that banning drag shows somehow advanced inclusivity.