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On Tuesday, a federal judge declared a newly passed law in Texas, which aimed to impose limitations on certain public drag shows, as unconstitutional, thereby stating that the state cannot enforce it.
U.S. District Judge David Hittner found Senate Bill 12 “impermissibly infringes on the First Amendment and chills free speech.” The struck-down law prohibited any performers from dancing suggestively or wearing certain prosthetics in front of children.
In her ruling, Hittner deemed language to be discriminatory on the basis of viewpoint, stating that it is excessively broad and vague in violation of the Constitution.
According to the ruling, it is evident that the provisions of SB 12 cannot be interpreted in a manner that does not result in the inclusion of a significant amount of constitutionally-protected behavior in its enforcement. The ruling suggests that it is not illogical to infer from SB 12 that activities like cheerleading, dancing, live theater, and other ordinary public events may potentially be deemed as civil or criminal offenses.
The plaintiffs who filed a lawsuit against the state expressed their joy over the ruling, stating through their attorneys that the decision validated their freedom of speech.
Drag performer Brigitte Bandit expressed her relief and gratitude towards the court’s ruling, acknowledging the detrimental impact of elected officials’ animosity and mistreatment on her livelihood and community. She emphasized the significance of this decision, serving as a vital reminder that queer Texans have a rightful place and deserve to have their voices heard by lawmakers.
Republican state Sen. Bryan Hughes, who authored SB 12, defended the bill and pledged to challenge the ruling. The Texas Attorney General’s Office will appeal the ruling, a spokesperson said.
Hughes stated that there should be a consensus on safeguarding children from sexually explicit performances, which is the primary objective of Senate Bill 12. He emphasized that this law is both rational and in accordance with the constitution, and expressed readiness to uphold it, even if it necessitates taking the case to the Supreme Court.
However, opponents of the bill argue that Republican lawmakers and officials have mischaracterized all drag performances as inherently sexual or obscene, which they believe is unfair.
Although SB 12 was initially presented as a bill aimed at shielding children from drag shows, the final version did not explicitly address individuals who dress in attire associated with the opposite gender.
However, Republican leaders, including Gov. Greg Abbott, made it clear that drag shows were the bill’s target — comments and history that Hittner wrote “the court cannot ignore.”
Last month, Hittner temporarily blocked SB 12 from taking effect on Sept. 1 after a two-day hearing for a lawsuit filed against the state by a drag queen and LGBTQ+ groups.
LGBTQ+ Texans, advocates, artists and business groups who sued the state, argued that the law discriminates against the content of performances and restricts equally protected free expression that is protected under the First and 14th Amendments.
According to Tuesday’s 56-page ruling by Judge Hittner, a survey of court decisions indicates that there is minimal deviation from the viewpoint that drag performances are a form of expressive content, which should be granted protection under the First Amendment.
According to the ruling, drag shows encompass a wide range of emotions and intentions, including humor, pure entertainment, and social commentary on gender roles. The court acknowledges that these performances are undoubtedly a form of art, primarily aimed at providing entertainment. Therefore, even solely based on this aspect, they deserve a certain level of protection under the First Amendment.
Federal courts have also invalidated similar legislation in other states, which aimed to restrict drag performances.
A law in Tennessee, aimed at suppressing First Amendment-protected speech, was deemed unconstitutional by a federal judge appointed by former President Donald Trump in June.
Bucking that trend, another Texas federal judge last week issued an opinion that supported drag show restrictions.
Judge Matthew Kacsmaryk of the U.S. District Court stated that Walter Wendler, the President of West Texas A&M University, was within his rights to cancel a drag show on campus. In his ruling, Kacsmaryk explained that the existing legal framework regarding Free Speech did not definitively establish that all drag shows can be considered as expressive conduct.
Hittner acknowledged his Panhandle counterpart’s ruling Tuesday. Hittner pointed to a letter in which Wendler explained his reasoning for banning the show, comparing drag to blackface and a slapstick sideshow.
In his written statement, the president’s sentiment supports the Court’s view that just because some individuals may find a performance offensive or morally objectionable, it does not imply that the performance lacks expression or falls outside the scope of First Amendment protection. The president highlights that not everyone will appreciate or endorse certain performances, which is akin to personal preferences concerning comedy or music genres. However, these opinions alone cannot diminish the protection afforded by the First Amendment.
LGBTQ+ advocates welcomed Hittner’s decision Tuesday.
“The LGBTQ community and advocates of free expression in Texas have reason to rejoice with today’s decision,” stated Sarah Kate Ellis, GLAAD President and Chief Executive Officer. “By deeming the ban on drag performances as unconstitutional and an assault on everyone’s liberties, Texas aligns itself with a growing list of states rejecting discriminatory and unfounded laws.”
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