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First AmendmentCourt RulingAug 26, 2026, 3:19 AM· 3 min read· in law justice

Federal Court Again Rules Texas Drag Ban Unconstitutional on First Amendment Grounds

A federal judge has blocked Texas's Senate Bill 12 for a second time, ruling that the law restricting "sexually oriented performances" violates the First Amendment.

By Javier Cruz

Civil Liberties Advocates 50%State Lawmakers 50%
Civil Liberties Advocates
Argue the law is a vaguely written, unconstitutional attack on free expression that targets the LGBTQ+ community.
State Lawmakers
Maintain the legislation is a necessary, narrowly tailored measure to protect minors from sexually explicit public performances.

Why it matters

The ruling temporarily halts a high-profile state law aimed at regulating public performances, reinforcing First Amendment protections for expression while setting up a likely return to the conservative Fifth Circuit Court of Appeals.

A federal judge in Houston has once again struck down a Texas law designed to restrict public drag performances, ruling that the measure violates the First Amendment. U.S. District Judge David Hittner issued a permanent injunction on Tuesday against Senate Bill 12, a 2023 law that criminalizes "sexually oriented performances" in the presence of minors. The decision blocks Texas Attorney General Ken Paxton and other state officials from enforcing the statute, which had briefly gone into effect earlier this year.[1][2]

The ruling marks the second time Judge Hittner has declared the law unconstitutional. He initially blocked SB 12 in September 2023, shortly after it was passed by the Republican-led state legislature. However, the conservative-leaning Fifth Circuit Court of Appeals vacated that injunction in late 2025, allowing the law to take effect in March 2026 while ordering the lower court to reassess the case.[1][3]

In his 34-page reassessment, Hittner reaffirmed his original conclusion that the law is an unconstitutional form of both content and viewpoint discrimination. Citing the 2024 U.S. Supreme Court decision in Moody v. NetChoice, the judge determined that the state's definitions of "visual performances," "nude," and "prurient interest in sex" were impermissibly vague and overly broad.[3][4]

Hittner wrote that the statute's sweeping language could hypothetically criminalize a wide array of constitutionally protected expression. He noted that the law could be weaponized against "countless exhibitions and events with an audience," including cheerleading routines, gymnastics competitions, provocative cosplay at conventions, or even impersonators of artists like Dolly Parton and Elvis Presley. "The vast majority of the law's numerous applications violate the First Amendment," Hittner concluded.[1][2]

Senate Bill 12 was passed by the Texas Legislature in 2023 and championed by state leaders as a measure to protect minors.
Hittner wrote that the statute's sweeping language could hypothetically criminalize a wide array of constitutionally protected expression.

While the text of SB 12 does not explicitly use the word "drag," the legislation was widely promoted by its sponsors as a mechanism to ban drag shows in public spaces. Hittner's ruling pointed to the legislative history and public statements by state leaders, noting that Governor Greg Abbott explicitly touted the measure as a "drag ban" on social media following its passage.[2]

The lawsuit was brought by the ACLU of Texas on behalf of several drag performers and production companies, who argued the law stifled free expression and created a chilling effect that made Texans afraid to host or attend performances. Following Tuesday's ruling, plaintiffs celebrated the decision as a necessary protection for the LGBTQ+ community and the broader arts sector.[4][6]

State officials have consistently defended the law as a necessary child-protection measure, arguing it was narrowly tailored to shield minors from sexually explicit content. During the litigation, the Texas Attorney General's office maintained that the state has a compelling interest in regulating performances that appeal to a prurient interest in sex when children are present.[2][6]

The ruling sets up another likely legal battle at the Fifth Circuit Court of Appeals.

Addressing the state's argument regarding offended audiences, Judge Hittner echoed a previous federal ruling involving a separate drag ban at Texas A&M University. He wrote that for individuals who find such performances objectionable, "the solution is relatively simple... just don't go." The state is expected to appeal the permanent injunction back to the Fifth Circuit.[1][3]

What to know

  • U.S. District Judge David Hittner permanently blocked Texas Senate Bill 12, a law restricting sexually oriented performances.
  • The ruling marks the second time the law has been struck down, following a remand from the Fifth Circuit Court of Appeals.
  • Hittner ruled the law's definitions were overly broad and violated the First Amendment by engaging in viewpoint discrimination.
  • The judge noted the law could hypothetically penalize cheerleading, cosplay, and celebrity impersonators.
  • Texas officials are expected to appeal the decision back to the Fifth Circuit.

Where opinion splits

First Amendment Advocates

Civil rights groups and performers view the law as an unconstitutional overreach.

Plaintiffs and civil liberties organizations argue that Senate Bill 12 was never truly about obscenity, but rather a targeted effort to erase LGBTQ+ culture from public life. By relying on overly broad definitions of nudity and sexual conduct, advocates warn the state created a chilling effect that threatened mainstream theater, dance competitions, and pride parades. They maintain that the First Amendment strictly prohibits the government from banning artistic expression simply because some lawmakers find it offensive.

Texas State Officials

Conservative leaders argue the state has a duty to regulate explicit content in public.

State attorneys and Republican lawmakers maintain that the legislation is a standard child-protection measure, not a ban on the art form of drag itself. They argue the state possesses a compelling interest in shielding minors from performances that appeal to a prurient interest in sex. From this perspective, the law was narrowly tailored to apply only to sexually oriented exhibitions on public property or in the presence of children, aligning with historical precedents that allow governments to regulate obscenity.

Sources

Source coverage

6 outlets

2 viewpoints surfaced

Civil Liberties Advocates 50%State Lawmakers 50%
  1. [1]The Texas TribuneCivil Liberties Advocates

    Texas' limits on certain drag shows ruled unconstitutional again

    Read on The Texas Tribune
  2. [2]Houston ChronicleCivil Liberties Advocates

    Federal judge in Houston again strikes down Texas drag show law

    Read on Houston Chronicle
  3. [3]Courthouse News ServiceState Lawmakers

    Federal judge blocks Texas drag ban a second time

    Read on Courthouse News Service
  4. [4]San Antonio CurrentCivil Liberties Advocates

    Federal judge rules Texas' drag ban is unconstitutional prohibition of free speech

    Read on San Antonio Current
  5. [5]FOX 4 News Dallas-Fort WorthState Lawmakers

    Texas drag show ban again ruled unconstitutional by federal judge

    Read on FOX 4 News Dallas-Fort Worth
  6. [6]ACLU of TexasCivil Liberties Advocates

    Federal Court Rules Again that Texas Drag Ban Is Unconstitutional

    Read on ACLU of Texas

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