Judge Strikes Down Texas Drag Ban Again

A federal judge has struck down Texas's 2023 law restricting public drag performances for the second time, ruling that Senate Bill 12 violates the First Amendment and is unconstitutionally vague.

U.S. District Judge David Hittner, a Reagan appointee, issued the ruling Tuesday. It bars Texas Attorney General Ken Paxton — the Republican nominee for U.S. Senate — from enforcing the law and denies his motion for a new trial.

Hittner wrote that the statute "still prohibits huge swaths of constitutionally protected performances," and closed with blunt advice: "For those who find such activities as described in this case offensive, the solution is relatively simple … just don't go."

What The Law Did

S.B. 12, enacted in 2023, targeted "sexually oriented performances," including sexual gestures using "accessories or prosthetics that exaggerate male or female sexual characteristics," according to Billboard.

Businesses that hosted a prohibited performance could be fined up to $10,000 per violation. Performers faced a Class A misdemeanor carrying up to a year in jail. The law also let counties and cities regulate or ban such performances.

An earlier version of the bill referred explicitly to drag shows, but those references were removed before passage after criticism, Billboard reported.

The Ruling

Hittner called the phrase "prurient interest in sex" the law's "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," he wrote.

He warned the statute gave officials no limit: "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."

To show the reach, Hittner pointed to mainstream entertainers — Elvis Presley's "signature hip gyrations," Miley Cyrus "twerking on stage during a live performance at the 2013 MTV Video Music Awards," and Dolly Parton.

"Just as many people… chastised Dolly Parton as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure," he wrote, "there are 'erotic' elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12."

He added that the law was broad enough to criminalize "a Dolly Parton impersonator who uses a breast plate while dancing and making gestures." Billboard noted that one of the performers who challenged the law sometimes performed as Parton, and that the Parton references appear to be coincidental — the singer died the same day the ruling landed, and the opinion does not mention her death.

Hittner concluded that S.B. 12 violates the First Amendment as applied to Texas through the 14th Amendment, and said the record in the case was already adequately developed, so no new trial was warranted.