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Two Federal Trial Judges in Texas Express Diametrically Opposed Views on First Amendment Protection for Drag Shows

Posted on: September 27th, 2023 by Art Leonard No Comments

U.S. District Judge Matthew J. Kacsmaryk, a Trump appointee who is the only judge assigned to the Amarillo Division of the Northern District of Texas and is among the most anti-LGBTQ judges in the nation, issued a ruling on September 21 denying a preliminary injunction to a student organization that was prohibited by Walter Wendler, the President of West Texas A&M University (WT), from holding a planned drag show on the WT campus intended to raise funds for a charitable organization working to prevent suicide.  Spectrum WT v. Wendler, 2023 U.S. Dist. LEXIS 168735, 2023 WL 6166779.  Less than a week later, on September 26, Senior U.S. District Judge David Hittner, an appointee of President Ronald Reagan sitting in the Southern District of Texas, issued a permanent injunction against enforcement of S.B. 12, a recently-enacted Texas ban on public drag shows in The Woodlands Pride, Inc. v. Paxton, 2023 U.S. Dist. LEXIS 171268, 2023 WL 6226113.  Judge Kacsmaryk opined that past First Amendment cases had not established that drag shows are protected under the Freedom of Speech clause, so Wendler enjoyed qualified immunity from personal liability (but surely not from being enjoined regarding future conduct), and that drag shows are not necessarily protected as expressive conduct, even if they are not necessarily “lewd” or “obscene.”  Judge Hittner reached the opposite conclusion, applying strict scrutiny to the challenged law and finding that it failed that test on numerous grounds.  Although his injunction opinion was not released until several days after Judge Kacsmaryk’s ruling, he had already previously blocked the Texas law from going into effect after two days of hearings at the end of August, just prior to its effective date of September 1.

A recognized student group at West Texas A&M University, Spectrum WT, had presented charity drag shows before on the WT campus without incident.  Their most recent such event was scheduled for April 1, 2023, titled “A Fool’s Drag Race,” intended to raise funds supporting efforts to prevent suicide. A scheduling conflict prompted the organization to move the event up by one day.  But on March 21, President Wendler sent them a letter stating that “WT will not host a drag show on campus.”

Wendler purported to base his ruling on concern against stereotyping of women, and compared drag shows to “blackface” used to stereotype people of color.  He repeated Republican memes from state legislative debates, describing them as virtual festivals of lewdness.   “I do not support any show, performance or artistic expression which denigrates others – in this case, women, for any reason,” he wrote.  “Mocking or objectifying in any way members of any group based on appearance, bias or predisposition is unacceptable. . .  No one should claim a right to contribute to women’s suffering via a slapstick sideshow that erodes the worth of women.  When humor becomes harassment, it has gone too far.”  He claims that the show would constitute “harassment” inconsistent with the school’s vision statement, the Texas Education Code, and federal workplace rules enforced by the EEOC.

Everyone saw this as the pretext that it was, in an atmosphere where Republican politicians have taken to demonizing drag shows as automatically being “harmful to children,” resulting in laws being challenged in federal courts in several states and routinely blocked by preliminary injunctions.  (Some of those cases have been appealed by the states.) In March 2023, however, S.B. 12, the proposal that its sponsors intended to impose penalties on producers and participants in drag shows, was pending the Texas legislature, but it was not enacted until after the events underlying this lawsuit.  The debate in the legislature was not about “denigration” of women, but rather characterized the proposal legislation as protecting children from exposure to harmful “sexualized” performances.  In the views of Republican legislators (and Judge Kacsmaryk), drag shows are “sexualized” and, if it is possible that minors might be present in the audience, the normal rules of First Amendment protection for theatrical presentations go by the wayside, to judge by the analysis presented in this opinion.

Spectrum WT alleged that it would be presenting a family-friendly drag show that would merit a PG13 rating in the familiar motion picture code.  Their promotional material invited children accompanied by their parents to attend this show.  Even though President Wendler’s ban was announced on relatively short notice, plaintiffs were able to move the show to an off-campus location, so it did take place.

Their lawsuit looked to the future.  Spectrum WT planned to present drag show charity fundraisers in the future, the next in March 2024.  It sought preliminary injunctive relief so that it could confidently go ahead to plan the next one.  Pointing to the spring 2024 plans, Judge Kacsmaryk commented that they don’t need a preliminary injunction, because they are not planning a drag show any time soon.

Despite the fact that almost every other district court that has dealt with a recently-enacted state drag show prohibition statute has found it to violate the First Amendment, Judge Kacsmaryk concluded that Spectrum WT was unlikely to prevail on the merits (which after all, will be litigated before him, the only federal district judge in that courthouse), and he’s apparently already made up his mind, to judge by the opinion, that drag shows don’t enjoy much if any First Amendment protection.  His discussion (and some of the sources he cited, which observers pointed out had not been cited by defendants in their briefing against the preliminary injunction motion), suggested an exaggerated idea of what such a drag show involves.

He wrote, “Plaintiffs neither plead a ‘clearly established right’ to host a sexualized drag show on campus, nor that President Wendler’s response was ‘objectively unreasonable.’  And although Plaintiffs recite and repeat ‘expressive conduct’ boilerplate from landmark cases, they elide the constitutional and statutory taxonomies necessary to decide a Free Speech campus case – at least at this MTD phase.”  He also found that Wendler was entitled to “qualified immunity” from any personal liability in the case, as there is no controlling precedent from the Supreme Court or the 5th Circuit upholding a right of a student organization to stage “sexualized” drag shows on state university campuses.  He did, however, reject Wendler’s argument that sovereign immunity compelled dismissal of the case in its entirety.  He kept the case alive to the extent of commenting that the Plaintiffs “may still ultimately prevail on their request for declaratory relief, but that is a matter for another day.”  Having found that Plaintiffs failed to show a likelihood of success on their First Amendment claims, he did not discuss the other relevant factors for preliminary injunctive relief.  Appeal to the ultra-conservative 5th Circuit?  Good luck.

Plaintiffs in Spectrum WT are represented by J.T. Morris, Adam Steinbough, Conor T. Fitzpatrick, and Jeffrey Daniel Zeman, of the Foundation for Individual Rights and Expression, Philadelphia, PA.

Governor Abbott signed S.B. 12 into law on June 18, set to take effect on September 1.  The statute does not use the term “drag show,” instead engaging in broad circumlocution, purporting to ban “sexually oriented performances” that would include “sexual conduct,” which it define as including “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.”  Other forms of “sexual conduct” include “exhibition or representation, actual or simulated, of sexual acts” or of “male or female genitals in a lewd state” and “actual contact or simulated contact” involving genitals.  Also prohibited was nudity.  The statute provides purports to apply to “sexually oriented performances” if the performers’ conduct “appeals to the prurient interest in sex,” but the term “prurient interest” is not defined in the statute.  Judge Hittner speculates that the term was lifted from the three-prong definition of obscenity adopted by the Supreme Court in Miller v. California, but otherwise the statute does not require that a performance be deemed to be obscene under the full three-prong test.   Judge Hittner found based on the legislative history and the governor’s proclamation upon signing the law that “drag shows” were definitely being targeted by this law.  S.B. 12 created civil penalties for commercial entities hosting such performances, mandating that counties and municipalities ban or regulate such performances, and establishing criminal penalties for performers.  Performers were threatened with prosecution for class A misdemeanors with penalties of up to a year in jail and fines of up to $4,000.

After establishing that the various plaintiffs had standing to challenge the statute, Judge Hittner found that drag performances are a form of expressive conduct raising First Amendment free speech issues.  “Drag shows express a litany of emotions and purposes,” he wrote, “from humor and pure entertainment to social commentary on gender roles.  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.”

Judge Hittner mentioned the Spectrum WT decision, finding that case distinguishable on the facts, noting that UT President Wendler’s articulated reason for banning the campus drag show had to do with his view that it disparaged women and created a hostile environment for them.  “The president’s sentiment reinforces this Court’s opinion that while some people may find a performance offensive or morally objectionable, it does not mean the performance is not expressive or given First Amendment protection.”  And he pointed out that apart from entertainment value, “there are often political, social, and cultural messages involved in drag performances which strengthen the Plaintiff’s position.”  He also noted that Judge Kacsmaryk’s ruling was contrary to the other district courts that have issued preliminary injunctions against state bans on drag shows.  At present, as noted above, appeals are pending in these cases.

The court found that the statute discriminated based on content and viewpoint, both factors that invoke strict scrutiny of the law.  Although protecting children from harmful exposure is acknowledged as an important goal, the court found that the statute’s way of approaching the issue was unconstitutionally overbroad, sweeping in lots of protective speech and expressive conduct that would not be deemed obscene under Supreme Court standards.  Part of the problem was the use of terms that were not defined in the statute and would leave people guessing about its coverage in particular cases.  As to the problem of vagueness, another constitutional flaw arising from undefined terms, Judge Hittner wrote, “Without a clear understanding of ‘prurient sexual interest,’ other terms such as ‘lewd’ and ‘Performer’ (which is undefined in S.B. 12) become problematic.”  He concluded that “it is not readily known to someone of ‘ordinary intelligence’ how S.B. 12 will be enforced.”  The judge also found that S.B. 12 was an impermissible prior restraint on speech, since it authorized local governments to pass ordinances to “stop conduct that as discussed above is protected by the First Amendment.”

“Plaintiffs have shown actual success on the merits as to their facial challenges to S.B. 12,” wrote Judge Hittner.  Supporting the appropriateness of a permanent injunction against its enforcement, he noted that courts “deem the loss of a First Amendment right to be sufficient to show irreparable harm,” that the “chilling effect S.B. 12 will have on speech in general outweighs any hardship on the State of Texas,” and that it is always in the public interest to issue injunctions protecting First Amendment freedoms.  Thus, the court ordered that the named defendants, a list headed by Attorney General Ken Paxton, “are immediately enjoined from enforcing S.B. 12.”

State officials promptly announced that the court’s order will be appealed to the 5th Circuit, and, assuming Judge Hittner would not agree to stay his injunction pending appeal, they will ask the 5th Circuit to stay it.

The plaintiffs in this case are Woodlands Pride, Inc., Abiline Pride Alliance, Extragrams LLC, 360 Queen Entertainment LLC, and Brigitte Bandit, a drag performer.  They are represented by the ACLU of Texas and cooperating attorneys from Baker Botts, LLC.  The Texas Civil Rights Project represented numerous amici who supported the motion for injunctive relief.

Federal Appeals Court Rules Laws Against Conversion Therapy Using Solely Speech Violate the First Amendment

Posted on: November 22nd, 2020 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled on November 20 in Otto v. City of Boca Raton, 2020 U.S. App. LEXIS 36589, 2020 WL 6813994, that laws enacted by Boca Raton and Palm Beach County, Florida, prohibiting licensed therapists from performing conversion therapy on minors, violate the therapists’ rights to freedom of speech under the First Amendment.  The panel voted 2-1.  Two judges appointed by Donald Trump – Britt Grant and Barbara Lagoa – made up the majority.  Beverly Martin, appointed by Barack Obama, dissented.

Both of the local laws at issue were enacted in 2017.  In both cases, the local legislatures reviewed the voluminous professional literature condemning “sexual orientation change efforts” (SOCE), commonly called “conversion therapy,” as being fraudulent and causing potential harm to minors.  The legislatures concluded that this evidence was sufficient to justify outlawing the procedure.  Since local governments do not have authority to suspend or terminate a professional license granted by the state, instead they authorized fines to be imposed on licensed counselors who were found to have performed such “therapy.”  The local laws do not apply to unlicensed counselors, including religious counselors who are not required by the state to be licensed.

Nobody has actually been prosecuted under either law, but two licensed counselors, Robert W. Otto and Julie H. Hamilton, represented by lawyers from Liberty Counsel, an anti-LGBT legal organization, filed lawsuits claiming that the therapy they provide consists entirely of speech which cannot be outlawed by the government. They asserted that they do not claim that they can change a person’s sexual orientation, but that their therapy is intended to help their clients to “reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.”  They also asserted that their patients “typically” have religious beliefs that conflict with homosexuality and “seek SOCE counseling in order to live in congruence with their faith and to confirm their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

The plaintiffs also argued that their equal protection rights were violated because unlicensed counselors were not prohibited from performing SOCE, and that the localities were preempted from passing any law regulating the practice of therapists licensed by the state.  They sought a preliminary injunction barring enforcement of the laws while the case was pending, which was denied to them by the district court.  This appeal to the 11th Circuit sought to overturn the district court ruling and get the preliminary injunction pending a final ruling on the merits of their claims.

Similar laws passed by several states and other localities have been upheld against 1st Amendment claims.  Both the 3rd Circuit Court of Appeals in King v. Governor of New Jersey, 767 F. 3d 216 (2014), ruling on a New Jersey statute, and the 9th Circuit in Pickup v. Brown, 740 F.3d 1208 (2014), ruling on a California statute, have rejected the argument that this “talk therapy” is shielded from state regulation by the First Amendment.  They have held that the incidental burden on therapists’ speech was justified within the government’s legitimate role of regulating the practices of licensed practitioners, and the 3rd Circuit, in particular, held that when therapists are using speech in the context of providing “therapy,” that is professional speech that comes within the sphere of regulatory authority.  Furthermore, these other courts have recognized the compelling interest of states in protecting minors from harm.

In 2018, the Supreme Court ruled in a California case, National Institute of Life Advocates v. Becerra, 138 S. Ct. 2361, that a state law requiring reproductive health clinics that do not provide abortion services to provide their clients with information about the availability of such services from other providers, was an unconstitutional imposition of a speech requirement in violation of the 1st Amendment.  California sought to defend its law by invoking the concept of “professional speech” as falling within the sphere of legitimate state regulation.  Writing for the Court in that case, Justice Clarence Thomas rejected the idea that speech employed in the context of providing health care was a separate category of speech to be evaluated differently from other forms of speech that receive the full protection of the 1st Amendment.  He specifically criticized the 3rd and 9th Circuit conversion therapy opinions in this connection, rejecting the idea that speech should enjoy less robust constitutional protection because it was used by licensed counselors as their method of providing therapy.

Following Justice Thomas’s lead, the panel majority in this case held that the local laws should be reviewed under the “strict scrutiny” standard, as a content-based and viewpoint-based restriction on speech. This means that the laws would be treated as presumptively unconstitutional, placing the burden on the government to prove that they were necessary to achieving a compelling state interest and were narrowly tailored to avoid imposing unnecessary burdens on free speech.

Applying this strict scrutiny test, the majority of the panel concluded that the laws were unconstitutional.  Although Judge Britt Grant, writing for the majority, acknowledged that protecting children from harm is a compelling state interest, she rejected the argument that harm to children had been sufficiently shown to justify this abridgement of speech.

Pointing to the reports and studies that were considered by the legislatures in passing these laws, Grant wrote, “But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects of purely speech-based SOCE.  Indeed, a report from the American Psychological Association [a Task Force Report from 2009], relied on by the defendants, concedes that ‘nonaversive and recent approaches to SOCE have not been rigorously evaluated.’  In fact, it found a ‘complete lack’ of ‘rigorous recent prospective research’ on SOCE.”  She also noted that the same report stated that “there are individuals who perceive they have been harmed and others who perceived they have benefited from nonaversive SOCE.’ What’s more, because of this ‘complete lack’ of rigorous recent research, the report concludes that it has ‘no clear indication of the prevalence of harmful outcomes among people who have undergone’ SOCE.”

“We fail to see,” Grant continued, “how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.”  Grant pointed out that people who claimed to have been harmed by SOCE practitioners can bring malpractice claims or file complaints with state regulators of professional practice, but he asserted that the state may not categorically outlaw the practice without stronger evidence that it actually causes harm.

When a plaintiff seeks a preliminary injunction barring enforcement of a challenged law before the trial court has ruled on the merits of the challenge, the plaintiff must show that it has stated a potentially valid claim and would suffer irreparable injury if the law can be enforced against them.  In this case, Judge Grant wrote, since the majority of the panel found the law to be unconstitutional, it was reversing the district court decision and sending the case back to the district court “for entry of a preliminary injunction consistent with this opinion.”

The dissenting judge, Beverly Martin, conceded that the challenged laws are subject to “strict scrutiny.”  In the face of Justice Thomas’s statements in the 2018 NIFLA decision, it seems likely that basing her dissent on the idea that these laws regulate professional conduct and not speech as such was not going to get anywhere.  But, she argued, this is that rare case where a statute that prohibits a form of speech based on its content and viewpoint could be justified as serving the compelling interest of protecting minors from harm.

She rejected the majority’s conclusion that the laws “restrict ideas to which children may be exposed” by pointing out that nothing in the laws prevents therapists from discussing with their minor patients “the perceived benefits of SOCE,” and also that the therapists “may recommend that their minor patients receive SOCE treatment from a provider elsewhere in Florida.”  The only limitation imposed by the laws was the actual practice of this “talk therapy” on their patients within the jurisdictions of Boca Raton and Palm Beach County.

Most of her dissent was devoted to dissecting the majority’s dismissive evaluation of the evidence on which the Boca Raton and Palm Beach County legislators had relied to find it necessary to ban conversion therapy in order to protect minors.  She rejected Judge Grant’s assertion that there is “insufficient evidence to conclude that SOCE is so harmful as to merit regulation.”  Pointing to the 2009 APA Task Force report, she quoted, “there was some evidence to indicate that individuals experienced harm from SOCE,” including nonaversive methods.  The Task Force Report went on to say that “attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.”  And the Report “catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including ‘anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.’”

She was particularly critical of Grant’s heavy reliance on the Report’s comment about the lack of “rigorous recent prospective research” on SOCE.  First, she wrote, “what studies have been done ‘show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.”

Perhaps more significantly, she pointed out that rigorous research would require an unethical methodology.  She wrote, “the APA has cautioned that ‘to conduct a random controlled trial of a treatment that has not been determined to be safe is not ethically permissible and to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.”

“To be clear,” wrote Martin, “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct.  Thus, one implication of the majority holding is that because SOCE is too dangerous to study, children can continue to be subjected to it.  The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence.”

Further, she noted, there is “the recognition that homosexuality is not a mental illness as well as the particular vulnerability of minors as a test-study population.  All of this evidence leads to the inescapable conclusion that performing efficacy studies for SOCE on minors would be not only dangerous (by exposing children to a harmful practice known to increase the likelihood of suicide) but pointless (by studying a treatment for something that is not a mental-health issue).”

She also criticized the majority for focusing on comments selectively quoted from one APA Task Force report, and discounting that “SOCE is a practice that has already been deemed by institutions of science, research and practice” – listing nine of them – “to pose real risks of harm on children.  It is reasonable for the Localities to enact the Ordinances based on the existing evidentiary record as to harm.”

She rejected the plaintiffs’ argument that the Ordinances were either too overinclusive or underinclusive to survive strict scrutiny review.  “I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she concluded,” asserting that the plaintiffs are not entitled to a preliminary injunction.

At this point, the Boca Raton and Palm Beach County governments have strategic decisions to make.  The “luck of the draw” exposed them to a three-judge panel whose majority were Trump appointees.  Since this opinion is out of step with rulings by other federal courts of appeals, it is possible that the 11th Circuit would grant a motion for reconsideration en banc.

However, at present, six Trump appointees are balanced by four Obama appointees, one Clinton appointee, and an appointee of George W. Bush, so the “Trump judges” make up exactly half of the 11th Circuit bench, and the chances that the full circuit would overturn this ruling seem slim.

The defendants could also directly petition the Supreme Court for review.  But in light of the current line-up of that Court, to take this issue to that Court directly would really be tempting fate and, in the past, the Supreme Court has declined to review the constitutionality of anti-SOCE laws from other jurisdictions.

This is the first federal court of appeals to part company from the many cases rejecting First Amendment challenges to  these laws, increasing the likelihood that the Supreme Court would grant review, which could produce (in a worst case scenario) an opinion invalidating all the existing U.S. laws against conversion therapy.  On the other hand, a Supreme Court opinion upholding the constitutionality of these laws could encourage the current campaign to get more state and local governments to adopt them.  But given the odds, it may be particularly prudent for the defendants not to appeal, let the preliminary injunction go into effect, and concentrate on putting together a strengthened evidentiary record on the harms that SOCE does to minors to make it more likely they will prevail on the merits before the district court.

The court received five amicus briefs, all defending the challenged laws.  Among the organizations signing the briefs were the National Center for Lesbian Rights, Southern Poverty Law Center, Equality Florida Institute, Inc., The Trevor Project, American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association For Marriage and Family Therapy.