A divided federal appeals court panel has given Texas the go-ahead to enforce a state law seeking to criminalize “sexually oriented” shows on public property, a ban that drag performers say targets them in violation of their free speech rights.
The decision Thursday from the New Orleans-based 5th Circuit Court of Appeals appears premised on the notion that the 2023 law known as S.B. 12 won’t be enforced against drag acts unless they include overtly sexual components.
The two judges in the majority lifted an order from a lower-court judge who blocked Texas from enforcing the law altogether, concluding it was clearly aimed at drag shows in violation of the First Amendment.
The appeals judges, Trump appointee Kurt Engelhardt and George W. Bush appointee Leslie Southwick, said a Supreme Court decision last year on state social media regulation laws changed the legal landscape sufficiently that the lower-court order should be withdrawn and reconsidered.
Engelhardt and Southwick also said that because some drag performers and venues pressing the suit claimed they eschewed sexually explicit content, they were unlikely to be targeted for prosecution and lacked standing to pursue a preemptive suit against the law.
However, a third judge who partially dissented from the ruling Thursday, Clinton appointee James Dennis, warned that his colleagues were ignoring the clear intent of the legislature and top Texas officials to prohibit drag performances in public and in private spaces where children are present.
“It is entirely plausible that Plaintiffs’ gendered expressions, costuming, prosthetics, and choreography could be viewed by factfinders and officials empowered to enforce S.B. 12 as appealing to the prurient interest in sex,” Dennis wrote in his dissent.
Dennis and the other judges also sparred over the degree of protection such performances are entitled to under the First Amendment.
“We have genuine doubt, however, that pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected—especially in the presence of minors,” Engelhardt wrote, joined by Southwick.
Dennis slammed that statement as “gratuitous” and insisted that drag shows were as entitled to First Amendment protection as other theatrical endeavors.
“Drag — a costumed, choreographed, and frequently parodic performance that speaks in the idiom of gender — plainly participates in that protected tradition,” Dennis wrote. “The majority’s effort to collapse an entire art form into a few salacious acts turns these principles on their head.”
Dennis agreed with his colleagues that the lower-court judge should revisit the legal issues in the case in light of the Supreme Court’s social-media ruling. But Dennis said he would have left the injunction against the Texas law in place while that review takes place.
