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

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.

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