Affirming Standing for First Amendment Challenges to Texas Firearm-Exclusion Signage Requirements

Introduction

The Fifth Circuit’s decision in Bay Area Unitarian Universalist Church v. Ogg (No. 23-20165, Apr. 9, 2025) addresses whether private property owners have Article III standing to bring a First Amendment challenge to the specialized signage requirements in Texas Penal Code §§ 30.06 (concealed-carry trespass) and 30.07 (open-carry trespass). Plaintiffs Bay Area Unitarian Universalist Church and Antidote Coffee/Perk You Later, LLC (collectively “Plaintiffs”) operate, respectively, a church and a neighborhood coffee shop in Harris County, Texas. Both entities wish to exclude all firearms from their premises, but object to the cost, size, and content of the statutorily mandated signs. The district court dismissed their lawsuit for lack of standing. On appeal, the Fifth Circuit reversed, holding that Plaintiffs satisfy all three Article III standing requirements and remanded for further proceedings.

Summary of the Judgment

Judge Dennis delivered the opinion of a unanimous panel (Jones, Dennis, Douglas). The court held that:

Plaintiffs allege a concrete and particularized “asymmetrical treatment” injury under the First Amendment, because Texas imposes far more burdensome rules on signage that excludes firearms than on signs excluding “other items” (e.g., “no shoes, no shirt”).
This injury is not “self-inflicted.” Plaintiffs face a genuine dilemma: either post the large, expensive § 30.06/30.07 signs and suffer a communicative and aesthetic burden, or post nothing (or non-conforming signs) and forgo the built-in deterrent effect of the criminal trespass statutes.
The injury is traceable to Defendants’ enforcement of §§ 30.06 and 30.07, and would be redressed by an injunction and declaratory relief striking down the heightened signage requirements.
Plaintiffs also have standing to press a parallel Texas Constitution, Article I, § 8 claim because it is coextensive with the federal First Amendment challenge.
The court reversed the district court’s dismissals for lack of subject-matter jurisdiction, vacated its denial of leave to amend (as futile), and remanded for consideration of the merits.

Analysis

1. Precedents Cited

Davis v. FEC, 554 U.S. 724 (2008): The Supreme Court recognized standing where a self-financed candidate suffered “asymmetrical treatment” under campaign-finance law. The Fifth Circuit analogized this “asymmetry” to Plaintiffs’ claim that Texas burdens their speech about firearms exclusion more heavily than other property-exclusion speech.
Time Warner Cable, Inc. v. Hudson, 667 F.3d 630 (5th Cir. 2012): A pre-enforcement First Amendment case confirming that discriminatory treatment by statute constitutes judicially cognizable injury in fact.
Book People, Inc. v. Wong, 91 F.4th 318 (5th Cir. 2024): Booksellers had standing to challenge compelled warnings on library books because either choice under the law (comply or forgo sales) would harm protected speech interests.
Evers v. Dwyer, 358 U.S. 202 (1958): Held that “self-inflicted” injury doctrine does not defeat standing when plaintiffs face an unfavourable choice between two harmful alternatives.
Ex Parte Young, 209 U.S. 123 (1908): The exception to sovereign-immunity that permits injunctive relief against state officials enforcing an allegedly unconstitutional statute.

2. Legal Reasoning

The Fifth Circuit’s standing analysis tracked the familiar three-part framework:

Injury in Fact. Plaintiffs adverted to an “asymmetrical treatment” injury: Texas requires property owners to use verbose, costly, multi-language signs in precise format and size to exclude firearm-carrying visitors, but imposes none of those burdens on sign-makers excluding other classes of entrants. The court held that differential treatment burdens Plaintiffs’ communicative rights and aesthetic judgments—an injury long recognized in First Amendment cases.
Traceability. Because Plaintiffs’ injury flows directly from the enforcement of §§ 30.06 and 30.07, the named law-enforcement officials (the Harris County District Attorney, the County Sheriff, and local chiefs of police) are proper defendants under Ex Parte Young. Their enforcement practices thus form a “but-for” and proximate cause of Plaintiffs’ “asymmetrical” injury.
Redressability. A favorable decision declaring the heightened signage rules unconstitutional would allow Plaintiffs to exclude firearms by any § 30.05(b) sign, restoring parity with other property-exclusion regimes. The relief directly addresses the claimed First Amendment injury.

The court rejected Defendants’ “self-inflicted” injury argument by showing that Plaintiffs are “damned if they do, damned if they don’t.” Either posting the § 30.06/30.07 signs or foregoing them inflicts a cognizable harm—indeed the very dilemma recognized in Evers and Book People. Nor does Plaintiffs’ ability to call police and secure verbal trespass warnings defeat standing; the statute’s built-in deterrent effect is an essential component of the right to exclude, and Plaintiffs’ choice not to post the mandated signs impairs that right.

3. Potential Impact

This decision paves the way for more robust pre-enforcement challenges to speech-related regulations embedded in criminal statutes. Key takeaways:

Property owners have standing to attack specialized signage requirements that they claim burden their First Amendment rights, even if enforcement is aimed at third-party violators, not at the sign-posters themselves.
Asymmetrical treatment theories—long applied in campaign-finance and licensing contexts—are now available to litigants complaining of content-oriented burdens on expressive conduct embedded in state criminal codes.
Lower courts will need to examine “dilemma-style” injuries beyond the usual “chilling effect” paradigm, asking whether plaintiffs face two distinct harms from compliance or non-compliance alike.

Complex Concepts Simplified

Asymmetrical Treatment Injury: When one group of speakers or communicators is forced to bear a heavier burden (e.g., bigger, costlier, more complex signage) than another in delivering or restricting the same general message.
Self-Inflicted Injury Doctrine: Plaintiffs cannot base standing on harms they freely choose—but courts recognize exceptions when plaintiffs face an unavoidable dilemma of two harmful options.
Deterrent Value of Criminal Law: Trespass statutes protect property rights not only by after-the-fact prosecutions, but by deterring wrongdoing: a threat of criminal penalties alters real-world behavior.
Ex Parte Young Exception: State officials who enforce allegedly unconstitutional laws may be sued in federal court for prospective injunctive relief, despite Eleventh Amendment immunity.

Conclusion

Bay Area Unitarian Universalist Church v. Ogg marks an important expansion of standing doctrine in First Amendment litigation. By recognizing “asymmetrical treatment” as a concrete injury—even when enforcement is directed at third-party violators—the Fifth Circuit confirmed that private actors need not await prosecution or violate a law to challenge burdensome speech-related requirements. The decision reinforces the principle that property owners retain full authority to communicate their exclusionary policies without being saddled with unduly onerous signage mandates. On remand, the district court will proceed to the merits of Plaintiffs’ First Amendment and parallel Texas-constitutional claims, under the assumption that their standing has now been firmly established.