LGBTQ+ Texans and advocates filed a federal lawsuit Wednesday to block a new state law that criminalizes some drag shows — and other performances — if they occur in front of children.
Senate Bill 12, which goes into effect on Sept. 1, originally sought to classify all drag shows as sexual performances, but it was dramatically altered throughout the regular legislative session. The version the Legislature eventually approved criminalizes performers that put on sexually explicit shows in front of children as well as any businesses that host those shows.
But it’s how the law defines sexually explicit behavior that spurred the lawsuit.
The complaint argues that SB 12’s language is overly broad, allowing for too much discretion for police, prosecutors and municipalities to decide what is or is not illegal.
“In its zeal to target drag, the Legislature passed a bill so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity,” says the lawsuit, which was filed by the American Civil Liberties Union of Texas. “The State has threatened the livelihood and free expression of many Texans.”
Under the law, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or appeals to the “prurient interest in sex.” Performers caught violating the proposed restriction could be slapped with a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $4,000 fine.
The plaintiffs, represented by the ACLU of Texas, argue that SB 12 violates the First and 14th Amendments because the law “discriminates against the content and viewpoints of performances and imposes prior restraint on free expression.”
According to The Dallas Morning News, attorneys who have reviewed the bill say it could end up criminalizing behavior common at everything from Pride parades to bachelorette parties.
The bill classifies the use of “accessories or prosthetics that exaggerate male or female sexual characteristics,” accompanied with sexual gesticulations as sexual conduct.
Other plaintiffs are The Woodlands Pride, Abilene PRIDE Alliance, Extragrams LLC and 360 Queen Entertainment LLC.
They are suing the interim Attorney General of Texas, the district attorneys of Travis, Montgomery, and Bexar counties, The City of Abilene, Woodland Township, Montgomery County and Taylor County.
See here for some background and here for the ACLU’s statement. This one was on my list; as noted in that post, a similar law in Tennessee was ruled unconstitutional a few weeks ago. As is pretty much always the case with these bills, they are broad, vague, and harsh, which are three conditions not often compatible with the First Amendment. And also as always, we await to see what the courts, including the depraved Fifth Circuit, makes of this. PBS has more.