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

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]

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]

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]