Federal judge strikes down Texas drag show law

A federal judge in Texas struck down the state’s drag show restrictions for a second time Tuesday, ruling that the 2023 law violates the First Amendment and cannot be enforced by Attorney General Ken Paxton.

U.S. District Judge David Hittner said Senate Bill 12 improperly restricted constitutionally protected speech and was written so broadly that it could expose a wide range of performances to civil or criminal penalties. The ruling also denied Paxton’s motion for a new trial.

The law targeted “sexually-oriented performance” on public property or in places where someone under 18 could be present. It barred, among other things, suggestive dancing and the use of certain prosthetics in those settings. Business owners found in violation could face fines of up to $10,000, while performers could be charged with a Class A misdemeanor, carrying a possible penalty of up to one year in jail.

Hittner, a Reagan appointee, wrote that the statute failed “to give a reasonable person notice of what is prohibited” and could sweep in “cheerleading, dancing, live theater, and other common public occurrences.”

He also offered a blunt response to people “who find such activities as described in this case offensive.”

“The solution is relatively simple… just don’t go,” he wrote.

The case has moved through federal court for more than two years. Hittner first declared the law unconstitutional in September 2023. The 5th U.S. Circuit Court of Appeals later returned the case to him with instructions on how to reassess it and lifted a pause on the law, allowing it to go back into effect. The Guardian reported that the appeals court action in 2025 allowed Paxton, who is running for a U.S. Senate seat against Democrat James Talarico, to resume enforcement earlier this year.

Paxton said he would appeal Tuesday’s decision, according to The Guardian. “This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” he wrote on X. NBC News reported that Paxton’s office did not immediately respond to a request for comment Tuesday night.

In his ruling, Hittner criticized the law’s use of the phrase “appeal to the prurient interest,” saying it could capture “erotic” elements in many popular performances. He mentioned Dolly Parton, whose death was announced Tuesday, and cited people who might characterize her “as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure.”

“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote.

The Guardian reported that Hittner said the law’s terms were broad enough that they could block performers such as Lady Gaga or Miley Cyrus from performing in Texas. “Even if S.B. 12 were somehow content-neutral (an argument the Attorney General has never advanced), it still prohibits huge swaths of constitutionally protected performances,” he wrote.

Civil liberties groups welcomed the decision. “Drag has a rich history as a refuge of joy and liberation for countless Texans, and it’s not going anywhere,” the Texas chapter of the ACLU said in a statement. “All Texans – no matter our gender or background – are guaranteed the right to free expression.”

One plaintiff, the drag performer Brigitte Bandit, celebrated the ruling online by posting a screenshot of the decision with the caption, “Drag is free speech, b—-.” Bandit, who impersonates Parton and received a rhinestone guitar from her in 2023, said she would perform as Parton at an Austin bar Saturday in her honor.