Texas judge strikes down drag show ban citing First Amendment concerns

A federal judge in Texas has struck down a 2023 state law restricting public drag performances, ruling that the measure violates the First Amendment and is unconstitutionally vague.U.S. District Judge David Hittner, a nominee of President Ronald Reagan, ruled that Senate Bill 12, which sought to prohibit “sexually oriented performances,” is an unconstitutional restriction on speech. The law imposed civil penalties on businesses that hosted prohibited performances and criminal penalties on performers. It also gave counties and municipalities the authority to regulate or ban such performances.Under the law, businesses found in violation could face fines of up to $10,000, while performers could be charged with a Class A misdemeanor carrying a sentence of up to one year in jail. The ruling prevents Texas Attorney General Ken Paxton, the Republican nominee for Senate, from enforcing the law and rejects his motion for a new trial.In his ruling, Hittner said the law “still prohibits huge swaths of constitutionally protected performances,” arguing that its language could allow officials to target performances based on subjective interpretations of what is considered sexual.“Because the term ‘prurient interest in sex’ is open-ended, S.B. 12 can be used to cherry-pick particular aspects of performances that might be ‘in some sense erotic,’” Hittner wrote.The judge said the law is unconstitutionally vague because it fails to provide reasonable notice about what conduct is prohibited. He called the law’s use of “prurient interest in sex” its “most glaring issue.”“Because this term is undefined in Texas law, lacks a readily ascertainable ordinary meaning, and applies to all performances targeted by the statute, it renders S.B. 12 irredeemably vague,” Hittner wrote.Hittner also warned that the law could allow a single moment deemed erotic to subject an entire performance to criminal or civil penalties.“Because S.B. 12 does not specify who determines whether a performance ‘appeals to the prurient interest,’ or require that the work be taken as a whole, a single moment of eroticism could condemn an entire performance to criminal or civil penalties,” he wrote.The judge compared the potential reach of the law to controversies surrounding other performers, noting that people criticized Elvis Presley, chastised Dolly Parton over her appearance, and condemned Miley Cyrus for “twerking” during the 2013 MTV Video Music Awards.“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote.Hittner also offered a blunt response to people who find drag performances offensive.“For those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go,” he wrote.The judge ultimately declared that S.B. 12 violates the First Amendment as applied to Texas through the 14th Amendment and denied Paxton’s request for a new trial, concluding that the record in the case had been adequately developed.In 2023, Hittner ruled the law was unconstitutional and a First Amendment violation in 2023, but the 5th U.S. Circuit Court of Appeals returned to him last fall.GREG ABBOTT SAYS DATA CENTER DEVELOPERS ‘DUG THEIR OWN GRAVE’Hittner first deemed it unconstitutional and a violation of the First Amendment in 2023, but the 5th U.S. Circuit Court of Appeals unblocked the law, allowing it to go into effect in March 2026.Several other states have passed similar legislation attempting to restrict drag performances, but federal courts have repeatedly blocked the laws over similar First Amendment concerns.