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Free Speech

Federal Judge in Texas Not Wild About Fifth Circuit's Recent Precedent

"[T]he Fifth Circuit ... discerned that pedanticism ought to be favored over practical wisdom."

Eugene Volokh | 7.15.2026 8:29 AM

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........

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