A federal judge threw out a Texas law prohibiting “sexually oriented performances” in public or where they may be viewed by children, saying the so-called “drag ban” represented an unconstitutional infringement on free speech.
U.S. District Court Judge David Hittner issued a permanent injunction Tuesday against Senate Bill 12, citing case precedent that found “drag performances are expressive content that is afforded First Amendment protection.”
“Not all people will like or condone certain performances,” said Judge Hittner, a Reagan appointee based in Houston. “This is no different than a person’s opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection.”
The law was signed in June by Republican Gov. Greg Abbott amid national concern over the rise, in the name of promoting inclusion, of bawdy drag performers making their way into schools, public libraries and other children’s venues.
So far the courts have sided with the drag queens. Newly passed laws in Florida and Tennessee aimed at preventing children from seeing drag performances have also been blocked in recent months by federal judges.
Cheering Judge Hittner’s ruling was the American Civil Liberties Union of Texas, which represented the plaintiffs, including local pride festivals, entertainment groups, and Austin-based drag queen Brigitte Bandit.
“A federal judge has declared Texas’ drag ban unconstitutional,” the ACLU said. “LGBTQIA+ Texans, venue owners, performers, and our allies all came together to uphold free expression in our state — and we won. This work isn’t done but for now we celebrate. Long live Texas drag!”
Judge Hittner temporarily blocked Senate Bill 12 shortly before it was scheduled to take effect Sept. 1, saying there was a “substantial likelihood” that the law ran afoul of the First Amendment.
Violations of the law were punishable by fines and jail sentences of up to one year.
Those dismayed by the judge’s decision included Jonathan Covey, director of policy for the conservative group Texas Values, who predicted the ruling would be challenged.
“This fight is far from over as this ruling will certainly be appealed,” Mr. Covey said. “SB 12 would clearly protect kids from hyper-sexualized performances in the state of Texas. Obscenity in front of kids is never appropriate.”
BREAKING!! Drag Queen Court Ruling; Judge Allows Sexual Performances In Front of Kids blocking #SB12 from going into effect!! @jonathan_covey, at #TxValues stated “Obscenity in front of kids is never appropriate!”
Read the Press Release on our webpage: https://t.co/nha5MoLq4N
— Texas Values (text txvalues to 797979 for update) (@txvalues) September 26, 2023
In his ruling, Judge Hittner found the law “unconstitutionally overbroad” and “unconstitutionally vague,” saying that its prohibitions on sexually themed performances could apply to a wide swath of protected expression.
“The Court sees no way to read the provisions of S.B. 12 without concluding that a large amount of constitutionally protected conduct can and will be wrapped up in the enforcement of S.B. 12,” said the judge. “It is not unreasonable to read S.B. 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation of S.B. 12.”
In a Tuesday statement, Brigitte Bandit said “I am relieved and grateful for the court’s ruling.”
“My livelihood and community has seen enough hatred and harm from our elected officials,” the drag performer said on KXAN-TV. “This decision is a much-needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.
Judge Hittner noted in his opinion that “Brigitte Bandit sometimes dances, shimmies, shakes, and thrusts her hips, simulates kissing or ‘making out with somebody,’ blows kisses, and touches herself and others during her performances.”
“She fears multiple parts of her performances can be interpreted as ‘sexual gesticulations’ or ‘imitating sexual acts,’” the judge wrote.