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Federal Judge Rules Texas Ban On Public Drag Shows Unconstitutional

Legal opinion says the law is 'unconstitutionally overbroad' and 'unconstitutionally vague'

A federal judge has struck down a Texas law that sought to ban sexually charged drag performances in public view of children.

In a 56-page ruling, U.S. District Judge David Hittner has issued a permanent injunction against Senate Bill 12, declaring it unconstitutional and stating that the law “impermissibly infringes on the First Amendment and chills free speech.”

The bill was signed into law by Gov. Greg Abbott in June and took effect Sept. 1.

While the legislation makes no overt mention of drag show performances, Hittner’s legal opinion details numerous statements made by public officials saying that the law’s intent was to impact such shows.

Hittner called the law “unconstitutionally overbroad” and “unconstitutionally vague.”

“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 legal challenge to the law was brought by the American Civil Liberties Union (ACLU) of Texas and Baker Botts LLP, who issued a joint statement applauding Hittner’s decision.

“Today’s ruling blocks a law that threatens some of the most cherished First Amendment freedoms we all hold dear,” said Chloe Kempf, attorney at the ACLU of Texas. “S.B. 12 attempts to suppress drag artists and the LGBTQIA+ community, and its steep criminal and civil penalties would harm Black and Latinx transgender Texans the most. As the court recognized, S.B. 12 is also vague, overbroad, and chills entire genres of performances that are not obscene or inappropriate, from high school Shakespearean plays to the Nutcracker ballet to the Dallas Cowboys cheerleaders.”

Republican State Sen. Bryan Hughes, the bill’s author, says that Hittner’s ruling will be appealed.

“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.”

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