Last week, the U.S. Fifth Circuit Court of Appeals ruled that Texas can enforce its 2023 law banning “sexually oriented” drag shows in view of children. While the appeals court had removed a lower court injunction against the law last November, a two-judge panel upheld that removal finding only one of the law’s challengers had standing to sue and that the lower court did not apply the governing Supreme Court standards in its legal conclusions. The panel sent the case back to the lower court to reevaluate the case under several Supreme Court First Amendment precedents.

Texas’ Senate Bill 12 states that commercial venue owners “may not allow a sexually oriented performance,” or performances that “[appeal] to the prurient interest in sex,” to be shown “on the premises in the presence of an individual younger than 18 years of age.” The law carries up to a $10,000 fine per violation.   

Five self-described LGBTQ organizations challenged the law claiming its “vagueness” created a “chilling effect” on the First Amendment rights of drag show performers.

The judges first noted that four out of the five challengers did not have standing to bring their First Amendment claims since their performances did not possess the sexually explicit content the law forbids for children, so the Texas law was irrelevant in their case. However, the court found that a group called 360 Queen Entertainment did present shows in the presence of children with content that could “arguably” fall under the law’s proscribed performances.  

The court remanded the case to the lower court with instructions to examine the First Amendment claims under the U.S. Supreme Court 2024 Moody v. NetChoice framework to determine whether any substantial applications of the law are unconstitutional in relation to its legitimate enforcement. The court also instructed the case be freshly evaluated under the High Court’s vagueness doctrine – a standard the lower court “failed” to use when it concluded the law was “unconstitutionally vague.”

Liberty Counsel Founder and Chairman Mat Staver said, “Texas’ Senate Bill 12, and other state laws like it, protect children from sexually explicit performances. The First Amendment has never protected obscenity directed at children. Laws like this reflect a long-standing principle in constitutional law that the state and parents have the authority to protect a child’s innocence from obscene material. Protecting children is not censorship, it is a duty of common decency.”