A federal judge for the second time struck down a Texas law restricting drag performances, ruling Tuesday that the statute is unconstitutionally vague and permanently blocking state Attorney General Ken Paxton from enforcing it.
U.S. District Judge David Hittner, a Reagan appointee to the Southern District of Texas, found that Senate Bill 12 is “facially overbroad” and fails to give businesses and performers adequate notice of what conduct is prohibited, according to Courthouse News. The 2023 law bars businesses from hosting “sexually oriented performance” in the presence of anyone younger than 18, but does not use the word “drag.”
Judge Hittner had already declared the law unconstitutional once, in September 2023, before it took effect. The 5th U.S. Circuit Court of Appeals vacated that injunction and sent the case back for reconsideration in November 2025, ordering him to reapply the U.S. Supreme Court’s 2024 decision in Moody v. NetChoice, which sets a narrower standard for facial First Amendment challenges. That let the law take effect in March, according to The Texas Newsroom.
Applying that framework, Judge Hittner concluded the law still fails constitutional muster. He pointed to two undefined terms in the statute — “visual performances” and “prurient interest in sex” — that he said sweep so broadly they could reach cheerleading routines, live theater and mainstream concerts, not just drag shows, Courthouse News reported. The judge illustrated the point by noting that performers such as Elvis Presley, Miley Cyrus and the country singer Dolly Parton have all drawn criticism over sexually suggestive elements of their acts that could theoretically trigger liability under the law.
The reference to Ms. Parton took on added resonance Tuesday: The country music icon died at age 80 in Nashville the same day. Her publicist, Marcel Pariseau, said in a statement that she had been facing a brief battle with cancer.
One of the plaintiffs challenging the law, an Austin drag performer who goes by the stage name Brigitte Bandit, impersonates Parton in her act. Ms. Bandit said the ruling reaffirmed drag as constitutionally protected expression.
“Drag has always been a form of free expression,” she said in a statement carried by The Texas Newsroom, adding that she was tired of state officials trying to “censor art and stoke hatred and violence” against LGBTQ Texans. Parton had given her a rhinestone-covered guitar in 2023 after Ms. Bandit testified against the bill in the Texas Legislature.
Under S.B. 12, business owners found in violation could be fined up to $10,000 per violation, while performers could face a Class A misdemeanor carrying up to a year in jail and a $4,000 fine, per The Texas Newsroom’s account.
Judge Hittner’s order also denied Mr. Paxton’s request for a supplemental trial and new discovery in the case, according to the Texas Tribune. He closed the ruling with the line: “The solution is relatively simple … just don’t go.”
Mr. Paxton, who is running for the U.S. Senate, said in a social media post that he would appeal immediately, calling the decision “a profoundly flawed decision that endangers our children” and an affront to Texas values.
Brian Klosterboer, a senior staff attorney with the American Civil Liberties Union of Texas, which represented the plaintiffs, praised the ruling. “We celebrate this victory and remain committed to stopping state officials,” he said, arguing the law had chilled free expression across the state.
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