Texas Ban On Drag Shows Unconstitutional

JOOTB_FinalA federal court sitting in Texas recently struck down as unconstitutional a law banning "drag shows."  Angela King and Josh Williams, two Ohio legislators who've introduced similar legislation -- H.B. 245 -- in the Ohio House, might want to take note. 

The Texas statute at issue, S.B. 12, purports to ban "sexually oriented performances" by:  (1) creating civil penalties for commercial entities that host such performances ("Section One"); (2) mandating that counties and municipalities ban many "sexually oriented performances," and granting them authority to regulate other such performances ("Section Two"); and (3) establishing criminal penalties for performers ("Section Three").  Included in the ban was "the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics."

A group of plaintiffs, including a drag performer known as Brigitte Bandit brought the suit.  They claimed the law violated the First Amendment for several reasons, including being overly broad and viewpoint oriented.  The federal court agreed.

In determining that the law was overly broad, the court had to determine if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."  In other words, as written, did the law ban constitutionally permissible conduct?  In this case, the court found that the law did exactly that.  As the court noted, " S.B. 12 applies to any type of 'visual performance' and explicitly extends criminal liability to any performer ( which is also not defined) who 'regardless of whether compensation for the performance is expected or received,' violates the law.  The Court sees no way to read the provisions of S.B. 12 without concluding that a large amount of constitutionally protected conduct can and will be wrapped up in the enforcement of S.B. 12.  It is not unreasonable to read S.B. 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation of S.B. 12."  Banning cheerleading in Texas?  Not on Judge Hittner's watch.

The plaintiffs argued that because S.B. 12 targets performers who use prosthetics to simulate a gender other than the one they are assigned it constitutes viewpoint discrimination.  The court agreed. As it noted, "[w]hile the term 'drag show' is not mentioned anywhere in the text of S.B. 12, there is language to suggest targeting of drag shows.  In addition, the legislative history shows legislative intent to target drag shows. S.B. 12 specifically targets 'the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.'  This language goes beyond mere content-based discrimination because it is now directed at the specific act of impersonating or exaggerating a sex other than the one a performer is assigned.  Additionally, the court cannot ignore the legislative history and public statements by legislators purporting that S.B. 12 is at least in part a ban on drag shows."

Judge Hittner ultimately concluded that "[n]ot all people will like or condone certain performances.  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.  However, in addition to the pure entertainment value there are often political, social, and cultural messages involved in drag performances which strengthen the Plaintiffs position."  Like it or not, the First Amendment reaches drag shows.

Ohio H.B. 245 is currently in Committee, where it may die.  Here's hoping that if it does, Representatives King and Williams will move on to issues that really matter.  It would be a drag if they don't.

About The Author

Jack Greiner | Faruki Partner