Reported / Citable
Background
Texas Senate Bill 12 created civil and criminal penalties for certain “sexually oriented performances” in the presence of minors and authorized local governments to regulate those performances. The law was widely described as a drag-show ban, though it did not use the term “drag” in its text.
Five plaintiffs—two Pride organizations, two drag-entertainment businesses, and a drag performer—brought a pre-enforcement challenge. They contended that the law threatened their planned or ongoing performances and would chill protected expression. After consolidating the preliminary-injunction hearing with a trial on the merits, the court had previously entered a temporary restraining order.
The Court’s Holding
Judge David Hittner held that S.B. 12 facially violated the First Amendment and permanently enjoined the named state and local defendants from enforcing it. The court found the plaintiffs had standing because their expressive activities were arguably covered by the law and they faced a credible threat of enforcement.
The court held that drag performances are protected expressive conduct. It concluded that S.B. 12 was a content-based restriction subject to strict scrutiny and also constituted viewpoint discrimination because its language and legislative history targeted drag performances. The court further found the statute not narrowly tailored, substantially overbroad, unconstitutionally vague, and, as to its local-regulation provision, an impermissible prior restraint.
Key Takeaways
- Drag performances receive First Amendment protection as expressive conduct.
- A law restricting performances because of sexual content must satisfy strict scrutiny when it reaches protected expression.
- S.B. 12’s undefined and expansive terms, including its partial use of obscenity language, rendered it overbroad and vague.
Why It Matters
The decision stopped Texas from enforcing S.B. 12 before its restrictions could take effect against the plaintiffs’ performances. It underscores that states seeking to protect minors from sexual material must draft restrictions narrowly and cannot suppress protected expression through vague or sweeping performance bans.