A day before the state’s new law was set to go into effect, a federal judge ruled that it probably violates the First Amendment.
Following similar rulings by federal courts on such laws in Tennessee and Florida, U.S. District Judge David Hittner ruled that Texas’ statute, called Senate Bill 12, likely violated the First Amendment by restricting free speech.
“The Court finds there is a substantial likelihood that S.B. 12 as drafted violates the First Amendment of the United States Constitution under one or more of the legal theories put forward by the plaintiffs,” the judge wrote.
The ruling went in favor of a group of drag performers, drag production companies and non-profits that challenged the law. Represented by the American Civil Liberties Union, they argued that that S.B. 12 “criminalizes and restricts an enormous swath of constitutionally protected activity.”
Thursday’s order came as a temporary restraining order, which will only be in effect until the judge can issue a full written ruling. But the wording of the order indicates that he will likely strike down the law whenever he issues the more detailed decision.
Such a TRO, which can only be issued if a plaintiff proves they will suffer “irreparable harm” without one, was necessary because the law was set to go into effect on Friday.
“The court considers the impending infringement on the plaintiffs’ constitutional rights sufficient irreparable harm to warrant enjoining S.B. 12 while a final judgment is drafted,” Judge Hittner wrote.
Passed by Texas lawmakers in May and signed by Gov. Greg Abbott in June, S.B. 12 expands criminal restrictions on public performance of sexual conduct. The original bill included explicit references to drag shows, but they were removed in response to criticism. Instead, the final version bans sexual gestures that use “accessories or prosthetics that exaggerate male or female sexual characteristics.” Violators can face up to a year in jail, and businesses hosting events can be fined $10,000 for each violation.
Critics say such statutes, proposed or passed in states across the country over the past two years, are a thinly-veiled attack on the LGBTQ community. The new laws have been closely-watched by the music industry, over concerns that aspects of concerts could run afoul of broad new restrictions.
The ACLU filed its lawsuit earlier this month, arguing that – despite the changes to the wording – the new statute “unconstitutionally singles out drag.” They said it was also “sweepingly overbroad and vague and fails to give adequate notice of what it proscribes.”
“In its zeal to target drag, the Legislature also passed a bill so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity, including theater, ballet, comedy, and even cheerleading,” the group wrote.
The suit was filed on behalf of nonprofit LGBTQIA+ organizations The Woodlands Pride and Abilene Pride Alliance; drag entertainment companies Extragrams, LLC and 360 Queen Entertainment LLC; and drag performer Brigitte Bandit.
Earlier this week, Judge Hittner held a two-day trial-like hearing on the arguments from both sides. A final ruling is expected early next week.
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