U.S. District Judge David Hittner temporarily blocked a new state law Thursday from going into effect that would have criminalized sexually-oriented performances in front of children or effectively banned some public drag shows.
LGBTQ+ groups sued the Texas attorney general’s office, hoping to stop authorities from enforcing Senate Bill 12, which was signed by Gov. Greg Abbott in June and was scheduled like most new laws to go into effect Friday.
In a two-day hearing earlier this week in Houston, a drag performer and entertainment businesses said Texas lawmakers’ effort to regulate these shows was an unconstitutional attempt to stifle their freedom of expression. Though Hittner did not issue a final order on Thursday, he found the plaintiffs’ argument compelling.
“Based on evidence and testimony presented at the hearing, the court finds there is substantial likelihood that SB 12 as drafted violated the First Amendment of the United States Constitution under one or more of the legal theories put forward by the plaintiffs,” Hittner wrote in the temporary restraining order.
Hittner said allowing the law to take effect would likely cause “irreparable harm” to the plaintiffs. He issued the restraining order to maintain the status quo of the legal landscape while preparing a final decision — the restraining order does not guarantee a permanent injunction. He said his order could come two to four weeks after the hearing.
Hittner heard testimony earlier this week from LGBTQ+ groups, businesses and a performer, which were plaintiffs in one of two lawsuits against SB 12. They argued the law trampled on their First Amendment rights to perform and organize drag shows. They described drag as a healing, expressive and political form of performance art with historical connections to LGBTQ+ people.
“If allowed to take effect, SB 12 will make our state less free, less fair, and less welcoming for every artist and performer,” said American Civil Liberties Union of Texas Attorney Brian Klosterboer in a statement following the judge’s decision. “This temporary order is a much-needed reprieve for all Texans, especially our LGBTQIA+ and transgender community, who have been relentlessly targeted by our state legislature.”
Legal challenges to similar legislation in Florida, Montana and Tennessee have successfully blocked these laws from going into effect. In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled the law is unconstitutional in its effort to suppress First Amendment-protected speech.
See here and here for some background. The TRO will last for 14 days, during which time Judge Hittner will consider whether to issue a permanent injunction, per Houston Landing. This will surely get appealed, and we know what the Fifth Circuit is capable of, but for now this is a good thing. There was a lot of lawsuit news on Thursday and Friday and I’ll be catching up on it over the weekend. The Austin Chronicle and Texas Public Radio have more.