Texas’ law prohibiting explicit sexual performances in front of children is enforceable, according to a Thursday decision from the U.S. Fifth Circuit Court of Appeals. The case is being sent back to the district court for a decision on the law’s constitutionality.
The law known as Senate Bill 12—dubbed a “drag show ban”—regulates sexually oriented performances on public property and in the presence of minors. Attorney General Ken Paxton and local municipalities are responsible for enforcing it.
However, SB 12 has yet to be enforced, as it was preemptively blocked by the U.S. District Court for the Southern District of Texas before it took effect on September 1, 2023.
The lawsuit—Paxton v. The Woodlands Pride Inc.—was brought by a drag performer and others in the drag industry, alleging the law violates the First and Fourteenth Amendments.
After a two-day bench trial, the district court concluded that SB 12 is an unconstitutional restriction on speech, enjoining the attorney general of Texas, the City of Abilene, Taylor County, Montgomery County, and four district attorneys from enforcing it.
This decision was subsequently appealed to the Fifth Circuit Court of Appeals in New Orleans.
The Fifth Circuit opinion, written by Judge Kurt D. Engelhardt, explained that Plaintiffs “must demonstrate standing for each claim that they press against each defendant, and for each form of relief that they seek.”
The court found that Plaintiffs lacked the standing needed for many of their claims.
“Because the plaintiffs only have standing to assert their claims against the Attorney General, and the Attorney General only has the authority to enforce Section One, the sole remaining issue on appeal is whether the plaintiffs have established that Section One, on its face, violates the First Amendment,” he continued.
Section One of SB 12 prohibits a “person who controls the premises of a commercial enterprise” from “allow[ing] a sexually oriented performance to be presented on the premises in the presence of an individual younger than 18 years of age.”
To determine whether a law violates the Free Speech Clause of the First Amendment, it must be established that its unconstitutional aspects “substantially outweigh its constitutional ones.”
“The district court did not conduct this analysis,” wrote Engelhardt.
The Fifth Circuit has therefore sent the case back to the district court to undertake this task.
In addition to reconsidering the Plaintiffs’ facial challenge to Section One, the district court has been instructed to dismiss the claims against Brett Ligon, James Hicks, Montgomery County, Taylor County, and the City of Abilene.
In the meantime, the injunction has been vacated—meaning SB 12 is no longer blocked from enforcement, pending further court orders.
Paxton released a statement Thursday afternoon addressing the Fifth Circuit decision.
“I will always work to shield our children from exposure to erotic and inappropriate sexually oriented performances,” said Paxton. “It is an honor to have defended this law, ensuring that our state remains safe for families and children, and I look forward to continuing to vigorously defend it on remand before the district court.”
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