Federal Judge Rules Texas Drag Show Restrictions Unconstitutional Again

Texas’ limits on certain drag shows ruled unconstitutional again

HOUSTON — A federal judge has once again blocked Texas from enforcing restrictions on public drag performances, ruling Tuesday that Senate Bill 12 violates the First Amendment. U.S. District Judge David Hittner reaffirmed his earlier decision, declaring the law unconstitutional for the second time and pausing its enforcement.

The ruling comes after a rollercoaster legal battle that began in 2023 when the Texas Legislature passed SB 12. Judge Hittner first struck down the law in September 2023, citing violations of free speech protections. The 5th U.S. Circuit Court of Appeals later unblocked the law in November 2023, sending the case back to Hittner for further review. On Tuesday, Hittner stood by his original decision, stating that the appellate court’s instructions did not change his assessment of the law’s constitutionality.

SB 12 had gone into effect in March 2024 after the 5th Circuit’s ruling, but Hittner’s latest order halts its enforcement once again. The law’s broad language raised concerns among critics, who argued it could criminalize a wide range of performances, from provocative cosplay at conventions to athletic events and impersonations of figures like Dolly Parton and Elvis Presley. In his order, Hittner emphasized that the law targets constitutionally protected speech based on content and viewpoint, violating the First Amendment.

The lawsuit was initially filed against Texas Attorney General Ken Paxton, three district attorneys, one county attorney, and two counties by two community pride groups, two entertainment groups, and Brigitte Bandit, a drag performer and LGBTQ+ rights activist. After the 5th Circuit’s decision, two of the pride groups were removed as plaintiffs, and Paxton became the sole defendant. Hittner noted that this adjustment satisfied the higher court’s instructions.

In a statement provided by the American Civil Liberties Union of Texas, which represented the plaintiffs, Bandit expressed frustration over the state’s efforts to censor drag performances. “We use our performances to assert liberation, power, and joy with our community,” she said. “As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community.”

Hittner’s ruling also addressed Governor Greg Abbott’s characterization of SB 12 as a drag ban following its passage. Critics of the law have long argued that Republican lawmakers promoted the measure under the false premise that all drag performances are inherently sexual or obscene. While the final version of SB 12 does not explicitly mention drag, an earlier draft of the bill did. Hittner dismissed concerns about offensive performances, writing, “For those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go.”

The judge also denied a request from Paxton for a supplemental trial and additional discovery in the case. Paxton responded on social media, vowing to appeal the ruling to protect children in Texas. “This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” he wrote.

The legal battle over SB 12 highlights ongoing debates in Texas about free speech, LGBTQ+ rights, and the role of government in regulating artistic expression.

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