Federal Judge Again Strikes Down Texas Drag Show Law SB 12

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A federal judge has again struck down Texas's Senate Bill 12 (SB 12), the 2023 law restricting sexually oriented performances on public property and in the presence of minors.

U.S. District Judge David Hittner of the Southern District of Texas issued an amended final judgment on August 25 declaring SB 12 an "UNCONSTITUTIONAL restriction on speech." The court concluded that the law violates the First Amendment as incorporated against Texas through the Fourteenth Amendment and permanently enjoined Attorney General Ken Paxton (R) from enforcing it.

The ruling followed a remand from the U.S. Court of Appeals for the Fifth Circuit, which earlier this year vacated Hittner's original injunction and directed him to reconsider specific constitutional challenges. After applying the standards required by the appeals court, Hittner again ruled against the state, finding the challenged provisions both facially overbroad and unconstitutionally vague.

Paxton has already announced that Texas will appeal.

What Texas Senate Bill 12 Prohibits

Although commonly described as Texas's "drag show law," SB 12 does not prohibit drag performances by name. The Legislature instead created restrictions on what the law defines as "sexually oriented performances" on commercial premises, public property, and in the presence of someone younger than 18.

A sexually oriented performance is defined as a visual performance featuring either a nude performer or someone engaging in defined "sexual conduct" and that "appeals to the prurient interest in sex." The definition of sexual conduct includes actual or simulated sexual acts, lewd exhibition of genitals, certain sexual devices, actual or simulated contact involving another person's breasts, buttocks, or genitals, and "sexual gesticulations" using accessories or prosthetics that exaggerate male or female sexual characteristics.

SB 12 created several enforcement mechanisms. A person controlling commercial premises could face a civil penalty of up to $10,000 per violation for allowing a covered performance in the presence of a minor, with the Attorney General authorized to pursue those penalties or seek an injunction. The law also authorized municipalities and counties to regulate sexually oriented performances and created a Class A misdemeanor for performers engaging in a covered performance in the presence of someone younger than 18 or on public property where the performance could reasonably be expected to be viewed by a child.

Fifth Circuit Ordered Another Review of Texas SB 12

Hittner originally declared SB 12 unconstitutional in September 2023 and permanently enjoined its enforcement. The Fifth Circuit later vacated that injunction and remanded the case. Importantly, the appeals court did not hold that SB 12 was constitutional.

Instead, the Fifth Circuit ordered Hittner to dismiss claims against several local officials and governments, reconsider the plaintiffs' facial First Amendment challenge to Section One under the Supreme Court's framework in Moody v. NetChoice, and reconsider the facial vagueness challenge under Roy v. City of Monroe.

That left Extragrams, 360 Queen Entertainment, and Brigitte Bandit as the remaining plaintiffs and Paxton as the sole remaining defendant. The district court noted that the Fifth Circuit otherwise left its undisturbed findings as the law of the case.

The question on remand therefore became whether Section One could survive the more specific constitutional analysis required by the Fifth Circuit. Hittner concluded that it could not.

Federal Judge Finds SB 12 Overbroad Under First Amendment

Applying Moody, Hittner first examined the full scope of conduct potentially reached by SB 12 before comparing its constitutional and unconstitutional applications. The court concluded that the statute's definitions could reach considerably further than the sexually explicit performances lawmakers intended to address.

Hittner focused on the combination of a "visual performance," the law's definitions of nudity and sexual conduct, and the requirement that a performance appeal to the "prurient interest in sex." He concluded those provisions potentially encompass performances ranging from drag shows to theater, comedy, ballet, musical performances, cheerleading, and other expressive activity. The court offered examples of potentially protected performances that could arguably fall within the statutory language, including a gymnast whose clothing reveals part of the buttocks, a vocalist wearing a low-cut dress, a comedian using sexual gestures, a musical containing a simulated sex scene, or performers using prosthetics while dancing.

Hittner ultimately concluded that the unconstitutional applications of SB 12 substantially outweigh its constitutional applications. The court went further, finding that the law has no "legitimate sweep" under the Moody analysis because conduct that could constitutionally be prohibited is already addressed by other laws. That conclusion led Hittner to again find SB 12 facially overbroad under the First Amendment.

Court Also Finds Texas SB 12 Unconstitutionally Vague

Hittner separately reconsidered the law's vagueness under the standard specified by the Fifth Circuit and again ruled against the state. Central to that conclusion was SB 12's use of the phrase "prurient interest in sex."

The court noted that the phrase is not defined by Texas law. Although "prurient interest" originates in the Supreme Court's obscenity jurisprudence, Hittner observed that SB 12 does not incorporate the complete Miller v. California test, which considers a work as a whole and whether it lacks serious literary, artistic, political, or scientific value.

Hittner concluded that without clearer standards, a single allegedly erotic component could potentially expose an entire performance to liability. The court also identified uncertainty surrounding other terms, including "lewd," "performer," and who "controls" the premises of a commercial enterprise. Hittner concluded that the statute fails to give a person of ordinary intelligence sufficient notice of what is prohibited while creating the possibility of arbitrary or discriminatory enforcement.

On those grounds, the court held SB 12 facially vague in violation of the Fourteenth Amendment's Due Process Clause.

SB 12 Ruling Carries First Amendment Policy Lessons

Children should not be subjected to sexually explicit performances. Texas has a legitimate and important interest in protecting minors from sexual content and conduct that is inappropriate for children. Nothing about the constitutional concerns surrounding SB 12 requires abandoning that principle. The policy problem identified by the ruling is whether the Legislature wrote SB 12 precisely enough to accomplish that objective without also prohibiting constitutionally protected expression.

The supplemental findings make that distinction clearer. Hittner did not conclude merely that drag performances are protected and therefore beyond government regulation. His analysis focused on whether the language chosen by lawmakers reaches protected performances that are neither obscene nor obscene as to minors.

If SB 12 ultimately fails on constitutional grounds, the appropriate policy response should not be to conclude that Texas must tolerate sexually explicit performances in front of children. Lawmakers should instead determine whether the state's legitimate objective can be accomplished through more precise statutory language focused on clearly defined sexual conduct and material that government may constitutionally restrict.

The Legislature should also examine existing Texas laws governing obscenity, indecent exposure, sexual conduct, and protection of minors to determine where genuine gaps remain. Notably, Hittner's Moody analysis concluded that the constitutional applications contemplated by SB 12 were already prohibited elsewhere under existing law.

Protecting children and respecting constitutional limits on government power are not mutually exclusive objectives. Texas should be capable of doing both.

Texas Will Appeal Federal Court SB 12 Ruling

The August 25 judgment will not be the final word on Senate Bill 12. Following the ruling, Paxton announced that he intends to appeal, calling Hittner's decision "profoundly flawed" and arguing that it "endangers our children and is an affront to Texas values."

"I will appeal this decision immediately and continue to fight to protect our kids," Paxton said.

Hittner also denied Paxton's request for a new or supplemental trial and additional discovery. The Attorney General argued that additional evidence was necessary to conduct the analysis ordered by the Fifth Circuit, but Hittner concluded that the record had been adequately developed after the parties submitted more than 230 pages of supplemental briefing.

The case is therefore positioned to return to the Fifth Circuit, where the appellate court can evaluate whether Hittner properly followed its instructions and correctly applied Moody and Roy.

For Texas lawmakers, the outcome could provide considerably more guidance than simply whether SB 12 survives. Another Fifth Circuit decision could help establish how narrowly the Legislature must draft future efforts to protect children from sexually explicit performances without crossing constitutional protections for speech and expression.

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