A federal judge has ruled for a second time that a 2023 Texas law restricting sexually oriented performances is unconstitutional, and has permanently barred the state from enforcing it.
U.S. District Judge David Hittner issued an amended final judgment on Aug. 25 in The Woodlands Pride, Inc. et al. v. Warren Kenneth Paxton, et al., declaring Senate Bill 12 an unconstitutional restriction on speech under the First Amendment and permanently enjoining Attorney General Ken Paxton from enforcing it.
As things stand, the law is not enforceable.
What the law does
SB 12, passed in 2023 and widely referred to as the drag ban, regulates what it calls sexually oriented performances: visual performances featuring nudity or sexual conduct that appeal to what the statute terms the prurient interest in sex.
The definition covers actual or simulated sexual acts, lewd exhibition of genitals, the use of sexual devices, contact involving breasts, buttocks or genitals, and what the law describes as sexual gesticulations using accessories or prosthetics that exaggerate sexual characteristics. It applies on commercial premises, on public property, and in the presence of anyone under 18.
Businesses that allow a covered performance where a minor is present face civil penalties of up to $10,000 per violation. A performer can face a Class A misdemeanor charge. The attorney general is authorised to seek penalties or injunctions.
The judge's reasoning
Hittner found the statute's definitions overbroad and vague.
In his order he wrote that the language could reach sports matches, cheerleading, dance contests, karaoke, musicals and art exhibitions, and that under the law a single moment of eroticism could condemn an entire performance. He has previously noted that the definitions could expose comedians, cosplayers at conventions and impersonators of performers such as Dolly Parton or Elvis Presley.
How the case got here
Hittner first ruled SB 12 unconstitutional in September 2023, and the law was blocked for roughly two and a half years.
