Did the Texas Tribune Hallucinate About Judge Ho's Dissent?

The article misattributed two quotations to Judge Ho. And variants of those quotes appeared in the majority, but there were inexplicable alterations.

On August 18, a divided Fifth Circuit panel decided the case of Spectrum WT v. Wendler. This case presented a challenge to West Texas A&M University's decision to cancel a drag show on campus. The majority opinion by Judge Southwick, joined by Judge Dennis, found that the cancellation of the drag show violated the First Amendment. Specifically, the panel found the drag show was expressive. And, the majority ruled, "a message in support of LGBT+ rights was intended, which is a far clearer message than some of the examples of art identified in Hurley as protected by the First Amendment." The majority found that Christian Legal Society v. Martinez was not relevant because "expressive association" was not at issue in that case.

Judge Ho dissented. In short, Judge Ho found that if U.C. Hastings was able to exclude the Christian Legal Society, then West Texas A&M could exclude the drag show. His dissent begins:

Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez, 561 U.S. 661 (2010). I disagree with the Supreme Court's decision in CLS. But I'm bound to follow it. And I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.

This is a common theme in Judge Ho's decision. What is good for the goose is good for the gander. Whatever rules apply to one side must apply to the other side. There is a ruthless fairness to his cases, which I admire--especially when it involves a terrible precedent like CLS v. Martinez. If I could pick five decisions from the last two decades to reverse, Martinez would make the cut. Justice Ginsburg gerrymandered the facts of the case so gruesomely, for the reasons Justice Alito pointed out in dissent. I'm not even sure it is necessary to overrule CLS. That case could easily be confined to the facts about the "stipulations." Indeed, the West Texas A&M Case might be the perfect vehicle to do it. Imagine the headlines: Chief Justice Roberts writes majority opinion in favor of Texas drag show, with Justice Jackson in dissent. Heads will explode.

But that's not why I'm writing this post. I'm writing about the media.

The original version of the Texas Tribune (PDF link) included these three paragraphs about Judge Ho's dissent.

Judge James C. Ho dissented in the West Texas A&M case.

"Drag is not inherently expressive," wrote Ho, who was appointed to the 5th Circuit by Trump and is the former Solicitor General of Texas.

He argued that whether a particular performance conveys a protected message depends on the specific show, performers and audience. He said Spectrum WT had not shown it was entitled to such an "extraordinary remedy" as a court order blocking the drag show ban.

I read these sentences and was perplexed. Judge Ho did not say a word about whether drag is expressive. Seriously. The word "expressive" does not appear in the dissent. He didn't need to. He found this issue was decided by CLS v. Martinez, and under that precedent, the University receives deference. Full stop. Judge Ho said nothing at all about whether a "protected message depends on the specific show, performers and audience." He said nothing at all about whether an "extraordinary remedy" was justified. The word "remedy" does not appear in the dissent. Because again, he would have deferred under CLS v. Martinez.

I seriously wondered if the person who wrote this even bothered to read any of Judge Ho's dissent. Judge Ho didn't make any of these points.

I emailed the author, and inquired about just one of these items. I wrote that the quote "Drag is not inherently expressive" does not appear anywhere in Judge Ho's dissent. But I didn't mention other problems with the story. She wrote back promptly, and said a correction would be forthcoming.

A few hours later, the relevant paragraphs were revised and a "correction" was added to the bottom of the article (PDF link):

Judge James C. Ho dissented in the West Texas A&M case. Ho, who was appointed to the 5th Circuit by Trump and is the former Solicitor General of Texas, wrote that Spectrum WT had not shown it was entitled to such an "extraordinary remedy" as a court order blocking the drag show ban.

Correction, Aug. 19, 2025 at 6:38 p.m.: An earlier version of this story incorrectly attributed the statement "drag is not inherently expressive" to Judge James C. Ho in his dissent to the 5th U.S. Circuit Court of Appeals' ruling that blocks West Texas A&M University's ban on drag shows. The phrase appears in the majority opinion's overview of the arguments made by university President Walter Wendler in support of the ban.

There are many problems with this correction that raise more questions than answers.

First, the quote "drag is not inherently expressive" does not actually appear in the majority opinion. A variant of that quote does appear in the majority decision:

President Wendler also argues that drag shows require explanation before any meaning may be discerned, and this need for explanation demonstrates "that drag shows are not inherently expressive conduct."

There is a difference between "drag shows are not inherently expressive conduct" and "drag is not inherently expressive." The word "shows" is dropped, "are" is changed to "is," and "conduct" is dropped. I have to imagine a reporter would probably copy and paste such a complex sentence from a readable PDF. Maybe reporters still take notes by hand, but then such a mistranscription reflects sloppy reporting.

But even if I indulge the assumption that the reporter mistranscribed the quote, how was this mistake made? President Wendler's statement appears on page 7 in the fact section of the majority opinion. It was made briefly, and in passing. I doubt a reporter skimming a case would even come across this quote.

Second, even though the Tribune deleted the quotation about "expressive conduct," there is no explanation for this sentence: "He [Judge Ho] argued that whether a particular performance conveys a protected message depends on the specific show, performers and audience." This sentence was disappeared from the article without any explanation. Even if you unintentionally quoted a fact from the majority as if it came from the dissent, there would still have to be a volitional act to summarize (incorrectly) the dissent's analysis. Why did the author even think this was Judge Ho's position? Ho didn't make any of these points. Simply reading the first two paragraphs of the dissent would easily summarize the dissent.

Third, even after the correction, this sentence remains: "Spectrum WT had not shown it was entitled to such an 'extraordinary remedy' as a court order blocking the drag show ban." I did not mention this error in my email. Maybe the reporter could figure it out on her own. She didn't. And I think I figured out what happened here as well. The majority opinion includes this sentence when describing the standard for a preliminary injunction:

Because a preliminary injunction is an "extraordinary and drastic remedy," a court should not grant one "unless the movant clearly carries the burden of persuasion."

There is no reason for a reporter to even read this sort of boilerplate standard of review section.

You see what happened? Another sentence from the majority opinion was attributed to the dissent, but with a modification: "extraordinary and drastic remedy" was changed to "extraordinary remedy." If one quote from the majority was erroneously attributed to the dissent with alterations, I might buy it. But two? This is all very suspicious.

We've seen hallucinations in briefs from lawyers. We've seen hallucinations in decisions from judges. Courts are using AI to summarize their own opinions. We know journalists are using AI. Is it possible this discussion of Judge Ho's dissent was a hallucination? Is it possible the author asked ChatGPT to summarize Judge Ho's dissent?

I can imagine what AI might have done here. The majority said that drag was "expressive," and the "extraordinary" remedy of an injunction was warranted. So of course the dissent said the opposite: drag was not "expressive," and an "extraordinary" injunction was not warranted. And AI plucked some quotes from the opinion that supported such a holding. Those quotes couldn't come from the dissent, because he did't write that, so AI filled in the gaps. Or maybe the AI just assumed that of course Judge Ho, the right wing Trump appointee, would find that a drag show is not protected by the First Amendment, and work from there. Or maybe something else. We still don't really understand how AI does what it does.

I recently included this sentence in my syllabus for my Supreme Court simulation class:

The use of Generative AI is not permitted in this class on any assignment or to prepare for oral argument. Please do your own work. To understand why, read this post: https://adamunikowsky.substack.com/p/automating-oral-argument

I sent an email to the Tribune to inquire further. I'll be happy to post their response.