694 F.Supp.3d 820
S.D. Tex.2023Background
- Texas enacted Senate Bill 12 (S.B. 12) on June 18, 2023, creating civil penalties for venues, criminal penalties for performers, and delegating local authority to regulate so-called “sexually oriented performances.”
- S.B. 12 defines a "sexually oriented performance" by (1) visual performance with nudity or sexual conduct and (2) that "appeals to the prurient interest in sex;" several terms (e.g., "visual performance," "prurient interest") are undefined and the bill borrows but omits key Miller factors.
- Plaintiffs (two local Pride organizations, two drag production/entertainment companies, and an individual drag performer) brought a pre-enforcement facial and as-applied challenge under the First and Fourteenth Amendments, seeking injunctive relief; the court consolidated the preliminary injunction hearing with a trial on the merits.
- Plaintiffs testified that drag performances at festivals, restaurants, private events, and family-friendly venues are expressive speech, use prosthetics/costumes, and cannot practically exclude minors; they asserted a credible threat of civil and criminal enforcement and resulting chilling of speech.
- The court found plaintiffs had standing, concluded S.B. 12 is not severable as to Section Three, and held that S.B. 12 is a content- and viewpoint-based restriction that is overbroad, vague, and an impermissible prior restraint; it enjoined the named state and local defendants from enforcing S.B. 12.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Are drag performances expressive speech protected by the First Amendment? | Drag performances convey entertainment, political and social messages and are protected expressive conduct. | AG: Drag is not inherently expressive or communicative enough to trigger First Amendment protection. | Held: Performances are expressive and receive First Amendment protection. |
| 2) Is S.B. 12 a content- or viewpoint-based restriction requiring strict scrutiny? | S.B. 12 targets "sexual oriented performances" and language (plus legislative history) shows it targets drag specifically, including prosthetics that exaggerate sex characteristics—thus content- and viewpoint-based. | AG: Law is content neutral (protecting children) and should receive intermediate scrutiny; alternatively it survives strict scrutiny. | Held: S.B. 12 is content-based and also viewpoint-discriminatory; it fails strict scrutiny (not narrowly tailored to the compelling interest). |
| 3) Is S.B. 12 overbroad or unconstitutionally vague? | The statute’s broad categories of "sexual conduct," lack of Miller’s full obscenity prongs, and undefined terms (e.g., "visual performance," "prurient interest," "performer") sweep in substantial protected speech and provide no clear notice. | AG: Existing legal definitions and case law supply meaning; statute legitimately targets protection of minors. | Held: S.B. 12 is substantially overbroad and unconstitutionally vague. |
| 4) Does Section Two create an impermissible prior restraint, and are defendants proper parties? | Section Two authorizes local ordinances restricting performances on public property and before minors (prior restraint); state AG, county/city and district attorneys have enforcement roles so are proper defendants under Ex parte Young. | Defendants: Some argued ripeness, lack of current ordinances, or lack of "control" over premises; AG disputed some enforcement connections. | Held: Section Two constitutes an impermissible prior restraint; defendants are proper parties (plaintiffs have standing) and no defendant disclaimed enforcement. |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech restrictions are presumptively unconstitutional and subject to strict scrutiny)
- Miller v. California, 413 U.S. 15 (1973) (obscenity test and its limiting principles for unprotected sexual speech)
- Ex parte Young, 209 U.S. 123 (1908) (authorizing pre-enforcement suits against state officials enforcing unconstitutional laws)
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995) (speech need not have a single, narrowly articulated message to receive First Amendment protection)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is an especially egregious form of content discrimination)
- Brown v. Ent. Merchants Ass'n, 564 U.S. 786 (2011) (strict scrutiny applies to laws restricting minors’ access to expressive material; state interest in protecting children does not obviate strict scrutiny)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (prior restraints bear a heavy presumption of unconstitutionality)
- Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988) (ordinance allowing excessive discretion in permitting speech violates the First Amendment)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth doctrine invalidates statutes that sweep substantially into protected speech)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)