A federal judge in Texas has delivered a blunt message to the state’s effort to police drag performances: The Constitution doesn’t work that way.
U.S. District Judge David Hittner, a Reagan appointee, struck down Texas Senate Bill 12 on Tuesday, ruling that the 2023 law violated the First Amendment by unlawfully restricting protected speech.
And for Texans who don’t like drag shows, Hittner had an unusually simple solution: “The solution is relatively simple … just don’t go.”
The ruling blocks Texas Attorney General Ken Paxton from enforcing the law and rejects his request for a new trial.
Texas tried to make drag a crime
Senate Bill 12 imposed hefty penalties on businesses that hosted certain drag performances.
Business owners could face fines of up to $10,000, while performers could potentially be charged with a Class A misdemeanor carrying up to a year in jail.
The law targeted performances considered to include sexual conduct or appeals to “prurient interest,” among other provisions.
But Hittner found the language far too broad—and constitutionally dangerous.
The judge noted that the law could potentially sweep up much more than drag performances, including “cheerleading, dancing, live theater, and other common public occurrences.”
Texas lawmakers had written a law so broad that plenty of perfectly ordinary entertainment could potentially find itself in the state’s crosshairs.
Hittner also said the statute was unconstitutionally vague because it failed “to give a reasonable person notice of what is prohibited.”
And then Hittner brought Dolly Parton into it
The timing of Tuesday’s ruling was particularly striking because Hittner cited Dolly Parton, whose death was announced the same day.
In discussing the law’s definition of material that might appeal to “prurient interest,” Hittner pointed out just how subjective that standard could become.
He imagined people criticizing Parton as a “voluptuous sex symbol” because of her big hair, flamboyant outfits and revealing clothing.
“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote, according to ABC News.
That comparison goes directly to the heart of the constitutional problem: Who gets to decide what counts as offensive, erotic or sexually suggestive?
According to Hittner, Texas lawmakers gave the government far too much room to make that call.
This wasn’t Hittner’s first time ruling against Senate Bill 12.
He initially found the law unconstitutional in 2023 and said it violated the First Amendment.
But the 5th U.S. Circuit Court of Appeals sent the case back to him in November, lifting the pause on the law and instructing Hittner to reconsider the measure under a specific legal framework.
The law went back into effect last year.
Hittner followed the appeals court’s instructions. And then he struck it down again.
Texas is among several states that have attempted to restrict drag performances in recent years, making the issue a recurring battleground over free speech and government power.
One of the plaintiffs is Brigitte Bandit, an Austin drag performer who also performs as Dolly Parton.
Bandit celebrated Tuesday’s ruling on social media, posting a screenshot of the decision with the caption: “Drag is free speech, b—-.”
She also announced plans to perform as Parton at an Austin bar Saturday in honor of the country music legend.
The connection between the two women goes beyond imitation. Parton gave Bandit a rhinestone guitar as a gift in 2023.
Now Bandit plans to take the stage as Parton again—this time with a federal court ruling protecting her right to do it.
And Hittner’s message to anyone who doesn’t like what they see was remarkably uncomplicated:
You don’t have to watch. That, apparently, is still allowed in Texas.
Paxton’s office did not immediately respond to a request for comment.
