A divided federal appeals court panel has given Texas the go-ahead to enforce a state law seeking to criminalize “sexually oriented” shows on public property—a ban that drag performers say targets them in violation of their free speech rights.
The decision, issued Thursday by the New Orleans-based 5th Circuit Court of Appeals, appears premised on the notion that the 2023 law, known as S.B. 12, won’t be enforced against drag acts unless they include overtly sexual components. The two judges in the majority lifted an order from a lower-court judge who had blocked Texas from enforcing the law altogether, concluding it was clearly aimed at drag shows in violation of the First Amendment.
Appeals judges Kurt Engelhardt, a Trump appointee, and Leslie Southwick, a George W. Bush appointee, pointed to a Supreme Court decision last year on state social media regulation laws. They said this ruling had changed the legal landscape sufficiently to warrant withdrawing and reconsidering the lower-court order.
Engelhardt and Southwick also noted that some drag performers and venues involved in the suit claimed they avoid sexually explicit content. Because of this, the judges found they were unlikely to be targeted for prosecution and thus lacked standing to pursue a preemptive suit against the law.
However, a third judge, Clinton appointee James Dennis, partially dissented from the ruling. He warned that his colleagues were ignoring the clear intent of the legislature and top Texas officials to prohibit drag performances in public and in private spaces where children are present.
“It is entirely plausible that Plaintiffs’ gendered expressions, costuming, prosthetics, and choreography could be viewed by factfinders and officials empowered to enforce S.B. 12 as appealing to the prurient interest in sex,” Dennis wrote in his dissent.
The judges also sparred over the degree of protection such performances are entitled to under the First Amendment. Engelhardt, joined by Southwick, expressed skepticism: “We have genuine doubt, however, that pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected—especially in the presence of minors.”
Dennis slammed that statement as “gratuitous” and insisted that drag shows are as entitled to First Amendment protection as other theatrical endeavors.
“Drag—a costumed, choreographed, and frequently parodic performance that speaks in the idiom of gender—plainly participates in that protected tradition,” Dennis wrote. “The majority’s effort to collapse an entire art form into a few salacious acts turns these principles on their head.”
While Dennis agreed with his colleagues that the lower-court judge should revisit the legal issues in light of the Supreme Court’s social-media ruling, he said he would have left the injunction against the Texas law in place during that review.
https://www.yahoo.com/news/articles/appeals-court-lets-texas-enforce-185339565.html
