The Liberty Justice Center, a nonprofit legal group, filed an amicus brief today urging the U.S. Court of Appeals for the Fifth Circuit to take up a free speech lawsuit brought by two animal rights activists against the city of Houston.
The case, stemming from the activists’ repeated ejection from the city’s only public park for peacefully protesting factory farming, raises questions about government accountability and the boundaries of First Amendment protections.
The lawsuit was originally filed in September 2023 by Daraius Dubash and Faraz Harsini, who allege that park staff and Houston police removed them from Discovery Green—a downtown park operated by the nonprofit Discovery Green Conservancy under a city contract—simply because their advocacy was deemed “offensive.”
The activists argue that their ousting violated their constitutional rights to free speech and protest. After a lower federal court sided with Houston, dismissing the case on grounds that the Conservancy was a private entity not bound by the same constitutional restraints as the government, Dubash and Harsini appealed to the Fifth Circuit.
In its amicus brief, the Liberty Justice Center contends that Discovery Green Conservancy functions as a state actor, not a private organization, making the city of Houston liable for the activists’ treatment. The brief highlights that the Conservancy manages a traditional public space using city funds and property, exercises delegated governmental authority, and relies on off-duty Houston police officers for enforcement—hallmarks of state action.
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“The district court’s decision blurs the line between state and private actors, creating dangerous opportunities for the government to contract away its constitutional obligations,” said Reilly Stephens, Senior Counsel at the Liberty Justice Center. He warned that allowing such arrangements risks enabling cities to sidestep accountability through “idiosyncratic corporate structures.”
Houston, in its defense, has maintained that the Conservancy’s nonprofit status shields it—and by extension, the city—from liability, arguing that no constitutional violation occurred. The lower court agreed, ruling that the Conservancy’s actions didn’t constitute government conduct. The Liberty Justice Center counters that this interpretation undermines free speech protections, urging the Fifth Circuit to reverse the decision and clarify that the city cannot evade responsibility by outsourcing park management.
The case arrives at a time of heightened debate over public spaces and free expression, with the Fifth Circuit—covering Texas, Louisiana, and Mississippi—often a key battleground for constitutional disputes. A ruling in favor of Dubash and Harsini could set a precedent limiting how municipalities use private entities to regulate speech, while a loss might embolden similar arrangements nationwide.
The Liberty Justice Center, known for its 2018 Supreme Court win in Janus v. AFSCME on union dues, sees the case as a critical test of government transparency. “The Fifth Circuit should hold the city of Houston accountable for its violation of the First Amendment,” Stephens said, framing the appeal as a chance to safeguard residents’ rights against bureaucratic shell games. The full amicus brief is available online, with oral arguments expected in the coming months as the court weighs whether to grant the activists their day in court.
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