A federal judge on Tuesday struck down a Texas law for the second time, ruling that state restrictions on public drag performances violate the First Amendment. U.S. District Judge David Hittner determined that Senate Bill 12, which was passed by the Texas legislature in 2023, constitutes an unconstitutional restriction on free speech. The ruling blocks Texas Attorney General Ken Paxton (R) from enforcing the measure.
The legal challenge involves Senate Bill 12, a measure intended to restrict certain public performances. Judge Hittner had originally issued an injunction against the law in 2023, citing "viewpoint discrimination." However, the 5th Circuit Court of Appeals later vacated that injunction and instructed the district court to reconsider the case using a new First Amendment framework established by the U.S. Supreme Court in the 2024 case Moody v. NetChoice.
In his new ruling, Judge Hittner stated that the appellate court's instructions and the Moody test did not change his earlier conclusion. He wrote that the law's definition of banned performances was "unconstitutionally vague," noting that the term "prurient interest in sex" is open-ended and could allow for the selective targeting of performances that are "in some sense erotic." The plaintiffs in the case include 360 Queen Entertainment, Extragrams, The Woodlands Pride, Abilene Pride Alliance, and performer Brigitte Bandit.
A person living in Texas will notice that public drag performances, pride festivals, and related artistic displays remain legal and visible in public spaces for the time being. Had the law been upheld, organizers would have faced potential enforcement actions based on the state's interpretation of "prurient interest." The court's decision relies on First Amendment protections for free expression, reinforcing the legal precedent that artistic performance is a protected form of speech, even when it involves adult themes or gender-nonconforming content.
The case sets a significant precedent regarding how states may regulate public expression following the Supreme Court’s Moody v. NetChoice decision. While Judge Hittner has blocked enforcement for now, the legal process continues as Attorney General Paxton confirmed he will appeal the decision back to the 5th Circuit Court of Appeals. The appellate court will once again evaluate the law under the Moody framework to determine if the state’s restrictions can be reconciled with constitutional speech protections. No specific date for the next hearing was reported.