In June of 2023, the Texas legislature passed a new law meant to ban drag shows. Senate Bill 12 was written to restrict “sexually oriented performances” on the premises of a commercial enterprise, on public property, or in the presence of an individual younger than 18 years of age. The bill authorized criminal and civil penalties for violation.
LGBTQ+ advocates and event organizers were dismayed and took quick action. With help from the ACLU of Texas and the law firm Baker Botts LLP, two LGBTQIA+ nonprofit organizations, two drag production and entertainment companies, and a drag queen named Brigitte Bandit sued Texas Attorney General Ken Paxton.
In the lawsuit, The Woodlands Pride, Inc. et al, v. Warren Kenneth Paxton et al, they argued that the law was a targeted effort to suppress free speech. And they won. In September 2023, a federal district judge blocked the law from taking effect, ruling that it violated the First Amendment because it was content-based and overly broad.
Drag shows could continue as usual. But that wasn’t the end of the matter. Litigation continued. In February 2026 — after the law had been blocked for two and a half years — the Fifth Circuit Court of Appeals issued a new opinion and ruled that it could take effect after all. The appellate court sent the case back to the district court for more analysis.
Bad Mood? The Court Applied The Moody Framework
On August 25, 2026, the court completed that analysis and reaffirmed its original decision. Texas Federal Judge David Hittner declared that Texas Senate Bill 12 was unconstitutional. To reach this conclusion, the court applied the Moody Framework from Moody v. NetChoice, LLC. In Moody, the United States Supreme Court addressed challenges to two state social media laws that required private online platforms to remove or deprioritize user content in certain ways.
Under Moody, a court’s analysis proceeds in two steps:
- First, the court assesses the state law's scope. What activities, by what actors, do the laws prohibit or otherwise regulate?
Here, the court found a broad scope. All sections of the law were centered around the term “sexually oriented performances,” which were defined as being visual performances that feature a performer who’s either nude, engaging in sexual conduct or that “appeals to the prurient interest in sex.”
- Second, the court decides if the law’s application violates the First Amendment and measures it against the rest. The court asks how the law works in practice and explains that it was overly broad and vague.
The court held that, as written, the Texas law could limit a full range of activities, from cheerleading competitions to dance contests, karaoke, and musicals. If even a single moment of eroticism took place, the court speculated, even organizers could face civil and criminal penalties.
This verdict was a win for the American Civil Liberties Union (ACLU) of Texas and for drag performers everywhere. An article published by the ACLU of Texas quotes one of the plaintiffs saying, “We did it; we defeated bigotry and preserved individuals’ right to free expression.”
Texas Isn’t the Only State That’s Tried to Ban Drag
In recent years, many cities, counties, and state legislatures have tried to pass laws that restrict or effectively ban drag shows — especially all-age performances. These legislative actions triggered some high-profile legal challenges, usually involving First Amendment protections for free speech and expression. (A Harvard Law Review article quips, “Luckily, a constitutional amendment ratified by men in makeup wearing wigs prevents the passage of laws that aim to suppress drag performances.”)
One of these cases was Friends of George’s, Inc. v. Mulroy. The case disputed a law called the Tennessee Adult Entertainment Act (AEA), which the Tennessee legislature enacted in March 2023. The law restricted “adult cabaret performance” on public property or anywhere minors could view it and specifically targeted “male or female impersonators,'“ making a first offense a misdemeanor and subsequent offenses a felony.
The LGBTQ+ Memphis theater company, Friends of George’s, sued on the grounds that the law violated their First Amendment right to free expression. A federal district court ruled in their favor; the U.S. Court of Appeals for the Sixth Circuit dismissed the case based on lack of standing, and the U.S. Supreme Court declined to hear it.
A 2024 Florida case involving an Orlando restaurant and drag venue called Hamburger Mary’s challenged the state’s Senate Bill 1438 (the “drag ban”). The plaintiffs argued that the bill violated the First Amendment because it restricted protected speech based on the identity of the speaker and was impermissibly vague and overbroad. A federal judge issued a preliminary injunction that blocked enforcement of the law. The state appealed first to the U.S. Court of Appeals for the Eleventh Circuit and then to the United States Supreme Court. On August 4, 2026, the en banc Eleventh Circuit vacated the preliminary injunction, allowing Florida to enforce the law while the case proceeds.
First Amendment Advocates Say Banning Shows Is a Drag — And Pretty Complex
When it comes to bans on drag shows, First Amendment free speech is usually at issue. Federal courts use an established analytical framework to determine whether a law violates the First Amendment, but many factors come into play, and cases can get complicated.
Courts ask who restricted the speech. The First Amendment only applies to government actors (like state governments making drag ban laws, for example), so you’d have a hard time suing a privately-owned business for violating your First Amendment rights. A shopping mall that doesn’t allow drag shows, for example, isn’t a First Amendment issue.
Courts ask if it’s really “speech” that’s being regulated. The court might look at whether something should be categorized as speech, or whether it’s really expressive conduct. Broadly speaking, someone dressing or presenting however they choose is protected free expression.
Courts ask what the speech was about. There are exceptions to First Amendment protections for things like obscenity, incitement to imminent lawless action and defamation. Those things aren’t protected. There’s a long history of litigation around the First Amendment and obscenity, and courts apply what’s called The Miller test, which asks would the average person, when applying contemporary community standards, find that the work, taken as a whole, appeals to the prurient interest in sex. The court in The Woodlands Pride, Inc. et al, v. Warren Kenneth Paxton, et al, mentioned the Miller text and said that the way the law was drafted, it went far beyond those established standards.
Courts ask what basis the government has for regulating this speech. Is the government trying to regulate the content of the speech — keeping someone from expressing a certain viewpoint, or talking about a specific subject matter? That would violate the First Amendment.
There are many other considerations when it comes to drag performances and the First Amendment, but there’s one thing to know for sure. Prohibitions on drag shows have been going on for years, and this is not the last court case we’ll see on the matter.
