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A Texas law targeting drag show performances was struck down for the second time Tuesday by a Reagan-appointed judge who ruled that the law’s “broad” language could even be applied to banning performances by Jennifer Lopez, Miley Cyrus and the now late Dolly Parton.
Gov. Greg Abbott signed Senate Bill 12 into law in June 2023, which prohibits “sexually oriented performances” from occurring in public places or where someone under 18-years-old may be present.
The law imposed up to a $10,000 fine on business owners for hosting drag show events. Performers at the events could have also been charged with a class A misdemeanor.
At the time, Abbott dubbed the law a ban on public drag performances on social media, prompting a lawsuit filed by LGBT organizations, entertainment groups and a drag queen performer. The lawsuit accused the law of being in violation of first speech rights.
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U.S. District Judge David Hittner ruled that the law can not stand because it is “unconstitutionally vague” and “fails to give a reasonable person notice of what is prohibited,” suggesting that any entertainers with sexual undertones in their performance could be penalized.
“Just as many people criticized Elvis’s signature hip gyrations and were offended by his display of male sexuality, chastised Dolly Parton as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure, and shamed Miley Cyrus for ‘twerking’ on stage during a live performance at the 2013 MTV Video Music Awards, there are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote.
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Hittner first struck down the law in September 2023 on five constitutional grounds, but while Texas’s appeal was pending, the Supreme Court issued its 2024 decision in Moody v. NetChoice, clarifying how courts must evaluate facial First Amendment challenges. The 5th Circuit Court of Appeals handed the case back down with further instructions on how to decide the case based on precedent set in the Moody decision.
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Hittner again found the law unconstitutional, offering advice for those against drag shows.
“For those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go,” Hittner wrote in his briefing.
The Texas law sought to justify its ban on the claim that drag shows appeal to “the prurient interest,” but Hittner brushed that claim aside, ruling that state law doesn’t define what “prurient interest in sex” means.
“Because S.B. 12 does not specify who determines whether a performance ‘appeals to the prurient interest,’ or require that the work be taken as a whole, a single moment of eroticism could condemn an entire performance to criminal or civil penalties,” Hittner wrote.
“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” he wrote, going on to list “cheerleading, dancing, live theater, and other common public occurrences,” as activities that could be banned under the law.
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Hittner immediately and permanently barred Attorney General Ken Paxton from enforcing the law and denied Paxton’s request for a new trial and additional discovery. However, Paxton, who is running for U.S. Senate, is able to appeal and said he intends to do so.
“This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” Paxton wrote on X. “I will appeal this decision immediately and continue to fight to protect our kids.”
Fox News Digital reached to Paxton and Abbott’s office for comment.
Drag performer Brigitte Bandit, a plantiff in the lawsuit, celebrated the ruling. Bandit’s performances include impersonations of Dolly Parton, who passed away at 80-years old on Tuesday.
“Drag has always been a form of free expression, and it is a relief that the court recognized that today,” Bandit said in a statement . “We use our performances to assert liberation, power, and joy with our community. 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.”
The ruling comes weeks after a federal appeals court approved a Florida law restricting children from sexually explicit performances, including many drag shows.
The Florida law defines an “adult live performance” as a live show that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts” and that also predominantly appeals to a “prurient, shameful, or morbid interest,” is “patently offensive” for the age of the child present and, taken as a whole, lacks serious literary, artistic, political or scientific value for that child’s age.
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