TX Judge rules drag show ban is unconstitutional as written

Loading Twitter/X Embed...
If tweet fails to load, click here.

quote:

---

A federal district judge in Houston has ruled that Senate Bill (SB) 12, which would forbid drag shows with children under 18 years old in attendance, is unconstitutional.

Judge David Hittner, an appointee of President Ronald Reagan serving in the Southern District of Texas, Houston Division, wrote that the law “is an UNCONSTITUTIONAL restriction on speech,” and “violates the First Amendment.”

---

quote:

---

Hittner ruled that even under the frameworks required by the 5th Circuit, his earlier decision stood, writing that “[t]he Court holds that Plaintiffs' facial overbreadth challenge to Section One of S.B. 12 succeeds under the Moody framework and that Plaintiffs continue to prevail on their facial vagueness challenge to Section One of S.B. 12 under Roy.”

On the first issue, Hittner argued that “S.B. 12 applies to countless protected performances that might contain elements that are ‘in some sense erotic’ and meet either the law's definition of ‘nude’ or ‘sexual conduct’ but are not obscene or obscene for minors and are thus constitutionally protected.”

He said that these include “(1) a gymnast performing a floor routine wearing a leotard or other garment that rides up and reveals a small part of their buttocks; (2) a vocalist wearing a low-cut dress that reveals a small part of the breast; or (3) a ballet dancer who experiences a wardrobe malfunction and reveals a portion of their buttocks or breasts.” In summary, Hittner said that the “law's sweeping and often undefined terms” meant that it violated the standards set by Moody.

On the second framework, Hittner wrote that “S.B. 12 is unconstitutionally vague because it fails to give a reasonable person notice of what is prohibited.”

“Even though multiple aspects of the law render it vague, the most glaring issue ‘relates to the term “prurient interest in sex.”’ Because the term ‘is undefined in Texas law, lacks a readily ascertainable ordinary meaning, and applies to all performances targeted by the statute,’” he said, “it renders S.B. 12 irredeemably vague… in violation of the Fourteenth Amendment's Due Process Clause.”

---