U.S. District Judge David Hittner struck down Texas Senate Bill 12, ruling that the state ban on public drag performances violates the First Amendment.
In a direct opinion issued from the Southern District of Texas, the federal judge determined the statute was unconstitutionally vague and overbroad.
The legislation sought to penalize venue operators with civil fines reaching $10,000 and charge performers with Class A misdemeanors carrying up to 1 year in jail and a $4,000 fine for hosting sexually oriented performances on public property or before minors under 18 years old.
The court rejected the state effort to restrict these performances by pointing to mainstream American music icons whose stage presence could easily trigger penalties under the law.
Judge Hittner wrote that the statute “still prohibits huge swaths of constitutionally protected performances” because the statutory language allows officials to target acts based on subjective interpretations of what constitutes sexual expression.
“Because the term ‘prurient interest in sex’ is open-ended, S.B. 12 can be used to cherry-pick particular aspects of performances that might be ‘in some sense erotic,'” Hittner explained, noting that the measure fails “to give a reasonable person notice of what is prohibited.” He further cautioned that “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.”
Judge Makes Interesting Dolly Parton Comparison
To illustrate the sweeping overreach, the judge compared drag routines to the public careers of Elvis Presley, Miley Cyrus, and country music icon Dolly Parton.
“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,” Hittner wrote.
He emphasized that “there are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” warning that standard public entertainment including cheerleading, dancing, and live theater faced identical legal risks.
Judge Hittner delivered a straightforward response to critics pushing for statutory restrictions across Texas.
“Finally, for those who find such activities as described in this case offensive, the solution is relatively simple… just don’t go,” Hittner concluded. The federal injunction permanently bars Texas Attorney General Ken Paxton from enforcing the statute, setting up another contentious round of litigation in federal appellate courts.
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