On September 26, 2023, United States District Judge David Hittner ruled that Senate Bill 12 is unconstitutional.
SB 12 was created in March of 2023 and was infamously known as the drag ban for its vague and broad way to “regulate sexually oriented performances and to restricting those performances” in commercial and public properties or in the presence of anyone under 18 years old.
In this court matter, the plaintiffs The Woodlands Pride, Inc., Abilene Pride Alliance, Extragrams, LLC, 360 Queen Entertainment, and Brigitte Bandit challenged the constitutional accuracy of SB 12 with this suit against the following defendants: Attorney General of Texas Warren Kenneth Paxton; Montgomery County; District Attorney of Montgomery County Brett Ligon; City of Abilene; Taylor County; District Attorney of Taylor County James Hicks; County Attorney of Travis County Delia Garza; and District Attorney of Bexar County Joe D. Gonzales.
The ruling goes over SB 12 which creates civil penalties for commercial entities that host these “sexually oriented performances,” mandating counties and municipalities to ban many of these performances and granting them to regulate other such performances, and establish criminal penalties for performers “punishable as a class A misdemeanor with penalties of up to a year in jail and a fine of up to $4,000.00.”
Although SB 12 does not specifically mention that this is directed at banning drag, the bill vaguely established “sexual conduct” as “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.” Judge Hittner even addresses in his 56 page ruling Texas Governor Greg Abbott’s Tweet from June 25, 2023 stating, “Texas Governor Signs Law Banning Drag Performances in Public. That’s Right.”
The defendants tried their desperate best to enforce SB 12, but the plaintiffs had clear proof and arguments in bringing this suit against them. Once the Senate Bill was created in March, the public even knew this was a clear violation of the First Amendment.
To no surprise, the ruling listed that SB 12 is “substantially overbroad” and that “even if S.B. 12 were not overbroad, it would still fail due to it being unconstitutionally vague.” The ruling also lists that the bill is unconstitutional for the following reasons: it is “an impermissible prior restraint on speech,” “the impending chilling effect S.B. 12 will have is an irreparable injury which favors enjoining S.B. 12,” “the Plaintiffs have shown the Balance of harm weights in their favor” since the bill’s chilling effect on speech “in general outweighs any hardship on the State of Texas,” and the ruling includes a section that quotes a case saying that protecting the First Amendment is always in the public’s interest.
At the end of the document, Judge Hittner “Declares that S.B. 12 is an UNCONSTITUTIONAL restriction on speech.” Judge Hittner also orders the listed defendants “are immediately enjoined from enforcing S.B. 12.”