[T]he Fifth Circuit concluded that a preference for exacting pedantry should take precedence over pragmatic wisdom.
From Judge Mark Pittman of the Northern District of Texas, on Monday in Kirkland v. O’Hare:
On December 9, 2025, the plaintiff attended an open session of the Tarrant County Commissioners Court, which functions as the governing body for Tarrant County. The plaintiff had signed up to address the public comment portion connected to agenda item F1. Judge Tim O’Hare, who serves as County Judge of the Commissioners Court, briefly quieted applause from the audience after the preceding speaker finished discussing item F1. The plaintiff does not allege that he was clapping or that anyone was reprimanded or ejected from the meeting for clapping.
Judge O’Hare invited the plaintiff to speak before the Commissioners Court. The plaintiff began with the remark, “Lord, I live in America where people cannot clap. That is insane to me.” The judge interrupted, saying, “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 following speaker addressed agenda item F1 and began by clearing his throat and apologizing for his sinuses—Plaintiff contends this speaker went off topic. During the remarks, the speaker also asserted that the Plaintiff’s First Amendment rights had been violated. Judge O’Hare allowed this speaker to finish without interruption. Later in the session, the same speaker criticized the Commissioners Court for including a consent agenda item but inadvertently spoke about the wrong agenda item. The judge permitted the speaker to continue for roughly a minute before recognizing that the discourse was off topic and guiding him back. The speaker resumed discussing the appropriate item shortly thereafter.
The plaintiff has not provided the Court with the full text of the Rules of Decorum in effect on December 9, 2025. According to the 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.” …
The plaintiff’s complaint, in sum, asserts that the defendants violated his First Amendment right to free speech by curtailing his speaking time at the December 9, 2025, meeting of the Commissioners Court. Central to this argument is a challenge to the constitutionality of the Rules of Decorum, which the plaintiff contends are facially unconstitutional.
Viewing the rules in light of two centuries of American legal history and precedent, it is not immediately evident why the Rules are subject to challenge 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 deemed comparable Rules of Decorum in Bossier City, Louisiana, to be constitutionally ambiguous. Merriott v. City of Bossier City (5th Cir. 2026). The Bossier City Rules stated: “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 reasoning is somewhat perplexing, as it seems to demand an almost Cartesian precision regarding the meaning of words used in everyday speech to preserve order and a civil courtroom ambiance. The days appear to have passed when people could rely on common-sense understandings of socially acceptable conduct in a public meeting. Instead, it seems we must delineate expectations to a level of clarity that one might expect from children, perhaps on the assumption that citizens are too immature to grasp the plain sense of “personal,” “impertinent,” “slanderous,” and “boisterous.”
Regardless of the Fifth Circuit’s view of the public’s discernment, the court in its own wisdom concluded that pedantry should be favored over practical discernment and the exercise of judicial discretion within the tribunal setting. While the court acknowledges defendants’ outrage, it remains bound by the Fifth Circuit’s legal readings and, as both trained legal professionals and ordinary readers would anticipate, must adhere to the opinion’s plain meaning. Here, the Tarrant County Rules of Decorum proscribe “personal attacks, impertinent, profane, obscene, or slanderous remarks.” Although the Bossier City and Tarrant County Rules of Decorum employ broadly similar language, the court hopes to see arguments that might successfully challenge such a reading.
{“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. Yet, while the First Amendment robustly protects expressive freedoms, courts have long recognized that reasonable, viewpoint-neutral limits may be placed in limited public forums, such as the meetings of a commissioners court. Such restrictions do not undermine free speech because individuals retain the ability to convey their views through other channels, including traditional public forums, private property, and digital platforms. Otherwise, public meetings would descend into disorder and vainglory rather than advancing the people’s business. Surely, this is not what the founders intended 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 reach a determination, the parties’ positions appear better suited for summary judgment or trial. Accordingly, the defendants’ Motions to Dismiss are DENIED….
You can read some excerpts from the Merriott precedent that the judge dismisses in this post (which I had intended to publish weeks ago, and which I merely posted today).
