# *Spectrum WT v. Wendler*

When the government operates a place or program that allows a wide range of private speech, it may not discriminate among speakers or groups based on their viewpoints.

December 3, 2025 • Legal Briefs 

By Joshua J. Bennett, Eugene Volokh, Dale Carpenter, & [Thomas A. Berry](https://www.cato.org/people/thomas-berry) 

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West Texas A&M University opens certain campus spaces for students, recognized student organizations, and the public to use for a broad range of expressive activity. Texas law and university policy bar administrators from denying access to these spaces based on students’ “political, religious, philosophical, ideological, or academic viewpoint” or the content of their “expressive activities.” A campus student group planned and organized a charity drag show for one such space. But days before the show was to go on, the university’s president cancelled the show.

The president explained his decision by announcing that he was opposed to the “ideology” underlying drag shows. He pronounced that “drag shows are derisive, divisive and demoralizing,” promoting “ideology” by focusing on “group membership,” not “individual” achievement. The student group sued, and a three-judge panel of the Fifth Circuit held that the university had likely violated the students’ First Amendment rights because the university had cancelled their performance based on its content. Now the full *en banc* Fifth Circuit is rehearing the case. And Cato has joined law professors Eugene Volokh and Dale Carpenter to file an *amicus* brief supporting the student group (with thanks to Joshua J. Bennett of BakerHostetler for assistance in drafting the brief).

In our brief, we explain that when the government operates a place or program that allows a wide range of private speech, it may not discriminate among speakers or groups based on their viewpoints. That is true even when the place or program is a limited public forum or nonpublic forum rather than a traditional or designated public forum. The panel majority correctly held that (1) the canceled drag show was speech protected by the First Amendment, and (2) the university’s president violated the First Amendment when he cited the show’s “objectionable message” (alleged sexism) to justify its cancellation without trying to satisfy strict scrutiny. That second conclusion holds true no matter how the forum (the particular campus venue at issue) is classified, whether as a designated public forum, as the panel held; a limited public forum (as the panel dissent argued); or even a nonpublic forum. Viewpoint discrimination is presumptively unconstitutional in each such type of forum.

Nor does any Supreme Court precedent weaken this rule. The panel dissent cited a Supreme Court precedent allowing public universities to require student groups to open their membership to all. But the Supreme Court considered such mandates to be viewpoint-neutral and content-neutral. Such precedents do not justify the viewpoint-based cancellation at issue here. The full Fifth Circuit should affirm the panel’s decision.

[![Spectrum WT v. Wendler cover](/sites/cato.org/files/styles/serial_cover_phone/public/2026-05/Spectrum%20WT%20v.%20Wendler%20cover.png?itok=tSNH6667)](https://www.cato.org/sites/cato.org/files/2026-05/Spectrum%20WT%20v%20Wendler.pdf) 

### Download This Legal Brief

##### *Spectrum WT v. Wendler* 

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##### About the Authors 

##### Joshua J. Bennett 

![e-volokh-cropped.jpg](/sites/cato.org/files/styles/author_picture/public/2021-09/e-volokh-cropped.jpg?itok=uCS_hUw0) 

##### Eugene Volokh 

Gary T. Schwartz Distinguished Professor of Law, UCLA

##### Dale Carpenter 

[![Thomas Berry](/sites/cato.org/files/styles/author_picture/public/2026-02/2025-10-16-Thomas%20Berry-sq_0.jpg?itok=SW7WagUw)](/people/thomas-berry) 

##### [Thomas A. Berry](/people/thomas-berry)

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

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](https://x.com/Thomas_A_Berry) [ 

](mailto:tberry@cato.org) 

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