In a decision that will affect venues across Texas, U.S. District Judge David Hittner reaffirmed his September 2023 ruling that Senate Bill 12, the state’s drag performance restriction, is unconstitutional. The order, issued Tuesday, came after the 5th U.S. Circuit Court of Appeals sent the case back to Hittner with specific guidance on how to reassess the law.
Judge’s reasoning
Judge Hittner wrote that the law’s definitions of “performance” and “nudity” are overly broad, potentially criminalizing a wide range of artistic expression. He noted that “provocative cosplay at conventions, swimming athletes, or Dolly Parton and Elvis impersonators could potentially be penalized under the law.” The judge emphasized that the majority of the law’s applications target content and viewpoint, which the First Amendment protects.
Legal background
SB 12 was signed into law in March 2023 after Governor Greg Abbott touted it as a “drag ban.” While the final version of the statute does not explicitly mention drag performances, an earlier legislative draft did. The law was initially struck down by Judge Hittner in 2023, then briefly revived by the 5th Circuit, which instructed the district court to reconsider the case.
Following the appellate court’s instructions, several plaintiffs and defendants were removed from the lawsuit, leaving Texas Attorney General Ken Paxton as the sole defendant. The plaintiffs include two community pride groups, two entertainment groups, and drag performer Brigitte Bandit, who has been a longtime advocate for LGBTQ+ rights in Texas.
Community response
Bandit, speaking through the American Civil Liberties Union, said, “We use our performances to assert liberation, power, and joy with our community. I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community.” The judge’s order also reminded opponents of drag performances that they are not required to attend events they find offensive, stating, “Finally, for those who find such activities offensive, the solution is relatively simple … just don’t go.”
Impact on Texas venues
The ruling pauses enforcement of SB 12, meaning that venues, conventions, and performers can continue to host drag and related performances without fear of state prosecution, at least until the law is potentially revised or appealed further. Local businesses that host live entertainment have welcomed the decision, citing concerns that the law’s vague language could have harmed tourism and cultural events.
Next steps
Attorney General Paxton requested a supplemental trial and additional discovery, but Judge Hittner denied the request. The case may return to higher courts if the state seeks to appeal again, but for now, Texas drag performers and their supporters can continue to present their art without the looming threat of criminal penalties.
Original reporting: Texas Tribune (HLL/CB) — read the source article.
