Can the Government Close a Courthouse Lawn to Speech at Night? A New Fifth Circuit Ruling Says a Blanket Curfew Went Too Far

Oct 16, 2026 · 6 min read · By Brandon J. Grable

Case: Rash v. Lafayette County, Mississippi, No. 24-60558 (5th Cir. Sept. 17, 2026) (published). Opinion by Judge Oldham, joined by Judges Wiener and Engelhardt. Read the opinion on the Fifth Circuit's website.

Courthouse squares have long been places where people gather, protest, pray, celebrate, and make art. Many local governments also regulate when and how people can use them. On September 17, 2026, the U.S. Court of Appeals for the Fifth Circuit, the federal appeals court that covers Texas, Louisiana, and Mississippi, decided a case that tests where those rules stop being reasonable: Rash v. Lafayette County, Mississippi, No. 24-60558.

The court held that a county's ban on permitted use of its courthouse grounds after dark could not be enforced against the man who challenged it, because the ban was not narrowly tailored. The court also held that he can go forward with challenges to several other parts of the county's permit policy.

What happened

Lafayette County's courthouse sits in the middle of the town square in Oxford, Mississippi, home of the University of Mississippi. The public uses the grounds for social gatherings, prayer services, holiday celebrations, and political protests.

In 2015, the county adopted a facility use policy that required permits to use county facilities, including the courthouse grounds. The county amended the policy several times, often in response to increased protest activity. The 2020 version included a curfew that barred use of the grounds from 30 minutes before dusk until dawn. It also required groups of five or more to get a permit, required 14 days' advance notice, allowed the sheriff to charge for security, required applicants to release and indemnify the county and to buy insurance for large events, and let the county deny a permit based on "the nature of the proposed use," including an "unreasonable health or safety risk."

John Rash, a film professor at the university, organizes a free public art event where artists project their work onto screens and other surfaces at night. In July 2020, he applied for a permit to hold the event on the courthouse grounds. The county denied it, citing the new curfew. He sued, arguing the policy violated the First Amendment.

After a bench trial, the federal trial court permanently barred the county from enforcing the curfew against him, but dismissed his other claims for lack of standing. Both sides appealed.

What the Fifth Circuit decided

Changing the policy did not end the case. In 2024, the county revised its policy again. The new curfew closes the grounds starting one hour after sunset instead of 30 minutes before dusk. The court said that change "eliminates none of the problems" the trial court found. It also found that the other revisions, at most, burdened Mr. Rash "to a lesser degree," which does not end a case when a new rule still disadvantages a challenger "in the same fundamental way." The county had the burden to show the case was moot, and it did not carry it.

The curfew failed the test for time, place, and manner rules. The court did not decide whether the curfew was content neutral. It assumed the more lenient standard the county argued for. Even under that standard, a rule must be "narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communication." The court quoted that test from its 1992 decision in Hays County Guardian v. Supple, a case about distributing a student newspaper at what was then Southwest Texas State University in San Marcos. The government bears the burden of meeting it.

The county pointed to nighttime pedestrian and traffic safety. The court agreed that public safety is an important interest in the abstract, but said the harms must be "real, not merely conjectural." The trial court found the county "presented considerable testimony" about safety concerns in the busy town square, but "no evidence" that those concerns extended to the courthouse grounds.

The court also found the curfew was not narrowly tailored. It applied from sundown to sunup, every day of the week, with zero exceptions, even though nighttime activity on the square varied and was heaviest on Thursday, Friday, and Saturday. The court added that "it borders on impossible to find a regulation narrowly tailored when the government changes it to restrict speech in different ways after virtually every protest, parade, or permit application." Responding to the county's argument that the curfew was tied to darkness, the court wrote that "the question is not whether the curfew provision is reasonably related to the earth's rotation on its axis. The question is whether the provision is narrowly tailored to the County's public safety concerns."

Mr. Rash can challenge the rest of the policy. The Fifth Circuit reversed the dismissal of his facial challenges. Because he plans to apply for permits again, and the rules will govern those applications, the court held he has standing to challenge the curfew as overbroad and to challenge the other five provisions: the five-or-more rule, the advance notice rule, the sheriff fees, the insurance-and-indemnification requirement, and the county's power to deny a permit based on the nature of the use. The court explained that in this kind of First Amendment challenge, courts "will assume a credible threat of [enforcement] in the absence of compelling contrary evidence."

The ruling has limits. The court did not strike down the whole permit policy. It sent the facial challenges back to the trial court, where Mr. Rash must show that the policy's unconstitutional applications "substantially outweigh" its constitutional ones. The court called that a "heavy burden."

Why it matters in Texas

Published Fifth Circuit decisions bind the federal courts in Texas. Many Texas cities, counties, and public universities have rules about permits, hours, fees, and insurance for using parks, plazas, and courthouse lawns. Rash does not mean every such rule is invalid. Governments can still adopt reasonable time, place, and manner rules. But the decision offers several reminders:

• The government, not the speaker, has to justify a time, place, or manner rule, and it needs evidence of real problems, not just predictions of trouble.
• A broad, one-size-fits-all ban that does not match actual conditions is open to challenge.
• Revising a policy does not automatically end a lawsuit if the new version burdens speech in the same basic way.
• A person who intends to apply for permits may be able to challenge permit rules that give officials broad discretion or impose fees and conditions, without waiting for every rule to be enforced against them.

If your permit was denied

If a government office denied your permit, shut down your event, or told you that you cannot gather or speak on public property, it can help to keep a copy of your application, any written denial or explanation, the version of the policy in effect when you applied, and notes about who said what and when. As Rash shows, policies change, and the specific version and the reasons the government gives can matter.

Grable PLLC handles First Amendment and civil rights matters in Texas. If you have questions about a permit denial or a restriction on speech or assembly on public property, you are welcome to contact the firm to talk about your situation.

This post is general information only. It is not legal advice, and reading it does not create an attorney-client relationship. Past results do not guarantee a similar outcome in any future matter. Every case is different. Grable PLLC was not involved in the case discussed in this post.

Attorney responsible for content: Brandon J. Grable, Grable PLLC, San Antonio, Texas.

Topics: First Amendment