Federal judge rules Texas drag ban unconstitutional

A Texas law prohibiting certain “sexually oriented” performances from taking place on public property or where they may be viewed by minors is unconstitutional, a federal judge declared Tuesday.

District Judge David Hittner, who had temporarily halted the state’s ban a day before the law was set to take effect in August, in a ruling on Tuesday wrote it represented “an unconstitutional restriction on speech” and barred state officials, including the attorney general, from enforcing it.

Hittner said drag shows were protected by the First Amendment.

“Indeed, First Amendment protection has been extended to all types of activities, even some that seem untasteful to society,” Hittner wrote in his opinion, citing a 2020 case concerning exotic dancers.

“Further, a survey of court decisions related to the issue of drag shows reveals little divergence from the opinion that drag performances are expressive content that is afforded First Amendment protection,” he wrote, referencing recent court decisions blocking drag bans passed in Tennessee, Florida and Montana.

In the Texas case, Hittner wrote, “the plaintiffs have in detail discussed their various performances and the various meanings the performances have. Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles.”

“There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection,” he wrote.

Texas’s Senate Bill 12, passed by the legislature in May and signed into law by Republican Gov. Greg Abbott in June, prevented businesses from hosting shows with nude performers or that appeal to the “prurient interest in sex” under the threat of hefty fines — up to $10,000 per violation.

Performers who violated the law’s restrictions could be charged with a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine.

Two LGBTQ nonprofit organizations, two businesses and a drag performer filed a complaint against the law early last month, before it was set to take effect on Sept. 1, saying it had already caused them “concrete harms,” including loss of business and threats to their personal safety. .

They argued the law “unconstitutionally singles out drag performances as a disfavored form of expression” in violation of the First and 14th Amendments of the U.S. Constitution.

While Senate Bill 12 does not explicitly mention drag performances, state officials have said it is intended to restrict them. A statement of intent submitted in March by the bill’s sponsor, Texas Sen. Bryan Hughes (R), explained, “A recent cultural trend has been for drag shows to be performed in venues generally accessible to the public, including children.”

“These shows often contain sexually explicit performances and music,” he wrote.

The American Civil Liberties Union (ACLU) of Texas, which represented the plaintiffs in the case, celebrated Hittner’s ruling on X, the platform formerly known as Twitter.

“LGBTQIA+ Texans, venue owners, performers, and our allies all came together to uphold free expression in our state — and we won,” the group wrote Tuesday. “This work isn’t done but for now we celebrate. Long live Texas drag!”

Texas’s Republican Attorney General Ken Paxton, who recently survived an impeachment trial, had argued the plaintiffs had not shown “an injury that is actual or imminent” and had failed to prove that drag shows are expressive conduct that warrants First Amendment protection.

Paxton’s office did not immediately return a request for comment.

The state is expected to appeal Hittner’s ruling.

At least six states have enacted laws restricting “adult” or drag performances, which LGBTQ and civil rights groups including the ACLU have argued could also target transgender people.

Bans in Florida, Montana and Tennessee are temporarily blocked by court orders.

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