This week, U.S. District Court Judge David Hittner ruled Senate Bill 12 was unconstitutional and “impermissibly infringes on the First Amendment and chills free speech.”
His ruling mirrors others across the country that have struck down similar laws. The decision was also not unexpected since Judge Hittner had sided with the plaintiffs and issued a temporary injunction in late August.
Texas legislators approved Senate Bill 12, which amended current obscenity laws, after social media posts have showed drag queens dancing and twerking with children in the audience. One of those incidents (pictured above) was filmed last fall in a restaurant in Plano, Texas, where a performer sang a crude song and lifted his skirt while a child was seen seated in the background. A flyer for the performance cautioned about adult content but did not explicitly ban children.
Jonathan Covey of Texas Values says his organization supported the Senate bill and then filed an amicus brief when it was challenged in court.
“There's a concept called variable obscenity,” says Covey, an attorney, “and what that means is it's met because children are the target audience.”
In other words, while it is true the courts tangle often over defining “obscene” and how to regulate that in light of the First Amendment, those legal arguments get tossed aside when the welfare of children is involved.
In his ruling, however, Judge Hittner agreed with the plaintiffs the amended state law went too far. It is not clear if state legislators will re-introduce a new bill after considering the judge's 54-page order.
Covey points out the legal fight over defining obscenity in Texas is not over. Last week, a second federal judge ruled in favor of Texas A&M University after its president cancelled a drag show campus drag show earlier this year. In his ruling, Judge Matthew Kacsmaryk wrote “it is not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.”
Covey, who recited that portion of the judge’s ruling to AFN, predicts the issue will eventually reach the U.S. Supreme Court.