A federal judge has struck down a Texas law prohibiting “sexualized performances,” including drag shows, in the presence of a minor.
The legislation, Senate Bill 12, was signed into law by Governor Greg Abbott in June.
The law applies to performances containing nudity and “the exhibition or representation, actual or simulated, of sexual acts,” or performances that appeal “to the prurient interest in sex … regardless of whether compensation for the performance is expected or received.”
On Tuesday, U.S. District Judge David Hittner ruled that the law is too broad and “impermissibly infringes on the First Amendment and chills free speech.”
“Not all people will like or condone certain performances,” Hittner wrote in his ruling. “This is no different than a person’s opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection.”
Under the legislation, businesses and venues that break the law could have been fined up to $10,000 per violation. Performers who violate the law could be charged with a Class A misdemeanor, which will be punishable by up to one year in jail and a $4,000 fine.
“The Court sees no way to read the provisions of SB 12 without concluding that a large amount of constitutionally-protected conduct can and will be wrapped up in the enforcement of SB 12,” he wrote. “It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation.”
The judge ruled specifically that drag shows warrant First Amendment protection.
“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” Hittner wrote. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection.”
The lawsuit was brought on by a coalition of LGBTQ organizations represented by the American Civil Liberties Union.
The plaintiffs in the case were Woodlands Pride, Abilene Pride Alliance, Extragrams, 360 Queen Entertainment, and a drag performer who goes by “Brigitte Bandit.”
The lawsuit argued that drag is an art and that there will be far-fetched unintended consequences like cheerleading being banned.
Texas state Sen. Bryan Hughes, the author of the legislation, has vowed to challenge Hittner’s ruling.
“Surely we can agree that children should be protected from sexually explicit performances. That’s what Senate Bill 12 is about,” Hughes said. “This is a common sense and completely constitutional law, and we look forward to defending it all the way to the Supreme Court if that’s what it takes.”
According to a report from the Texas Tribune, the Texas Attorney General’s Office has also said that they will appeal the ruling.
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