“…just don’t go”: Federal Court Strikes Down Texas Drag Show Ban—Again
On August 25, 2026, U.S. District Judge David Hittner issued his second ruling striking down Texas Senate Bill 12 — the state’s controversial “drag ban.” In a detailed opinion out of the Southern District of Texas, Judge Hittner permanently blocked the Texas Attorney General from enforcing the law, finding it unconstitutional on two independent grounds: it is overbroad in violation of the First Amendment, and its key terms are so vague they run afoul of the Due Process Clause of the Fourteenth Amendment.
Background: What Is SB 12?
Texas Senate Bill 12, passed by the Legislature in 2023, prohibits “sexually oriented performances” in business settings where minors may be present. The law was aimed squarely at drag shows and similar performances — a goal Texas lawmakers made little effort to conceal. Governor Abbott publicly touted the bill as a drag show ban.
The law was immediately challenged by LGBTQ+ advocacy groups and performers, including Houston-area drag queen and activist Brigitte Bandit, along with entertainment businesses Extragrams LLC and 360 Queen Entertainment LLC. The plaintiffs were represented by the ACLU of Texas and Baker Botts LLP.
A Case That Has Traveled Far
Judge Hittner first struck down SB 12 in September 2023 with a permanent injunction. The law remained blocked for over two and a half years — until the Fifth Circuit Court of Appeals overturned his ruling in late 2025, applying the Supreme Court’s 2024 framework from Moody v. NetChoice. The Fifth Circuit remanded the case back to Hittner for further analysis. SB 12 went back into effect in March 2026.
Hittner has now completed that analysis — and reached the same conclusion.
The First Amendment Analysis: Overbroad and Viewpoint-Based
Applying the Moody v. NetChoice standard, Hittner found that SB 12’s unconstitutional applications substantially outweigh any legitimate ones.
The problems begin with the law’s definitions. SB 12 restricts “visual performances” using definitions borrowed from the Texas Penal Code — definitions broad enough to sweep in virtually any event with an audience: sports matches, cheerleading competitions, dance contests, karaoke, musicals, art exhibitions, and more. The law’s definitions of “nude” and “sexual conduct” are similarly expansive. As Hittner put it, “a single moment of eroticism could condemn an entire performance to criminal or civil penalties.”
Hittner offered vivid examples of mainstream performers who could face liability under the law as written. He wrote that “just as many people criticized Elvis’s signature hip gyrations and were offended by his display of male sexuality, chastised Dolly Parton as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure, and shamed Miley Cyrus for ‘twerking’ on stage during a live performance at the 2013 MTV Video Music Awards, there are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12.”
It is worth noting that the Fifth Circuit’s 2025 ruling did not disturb Hittner’s earlier finding that SB 12 constitutes impermissible content-based and viewpoint-based discrimination — the most constitutionally disfavored forms of speech restriction. Even if the law were somehow content-neutral (an argument the Attorney General never even advanced), Hittner found it would still sweep up far too much protected expression.
Vagueness: The Fourteenth Amendment Problem
SB 12 also fails on due process grounds. The phrase “prurient interest in sex” — a central element of the law’s definition of prohibited conduct — is undefined anywhere in Texas law. That ambiguity leaves performers and venue operators unable to determine with confidence whether any given show might expose them to criminal or civil liability. Hittner found the term unconstitutionally vague.
What Lawyers and Plaintiffs Said
The ACLU of Texas hailed the ruling as a vindication of free expression. “Today’s decision confirms that the Legislature’s attempt to ban drag performances was unconstitutional from start to finish,” said Brian Klosterboer, senior staff attorney at the ACLU of Texas. “This law stifled free expression across our state and made people afraid to engage in or attend drag shows and other performances.”
Lead plaintiff Brigitte Bandit responded: “Drag has always been a form of free expression, and it is a relief that the court recognized that today. We use our performances to assert liberation, power, and joy with our community.”
Paxton Vows to Appeal — Again
Attorney General Ken Paxton announced he would immediately appeal. “This is a profoundly flawed decision that endangers our children and is an affront to Texas values,” Paxton wrote on X. The case is almost certain to return to the Fifth Circuit, and depending on how that court rules under the Moody v. NetChoice framework, it may eventually reach the U.S. Supreme Court.
The Bottom Line
Judge Hittner closed his opinion by echoing a line from a fellow Houston federal judge who had blocked a similar drag ban at Texas A&M University: “Finally, for those who find such activities as described in this case offensive, the solution is relatively simple … just don’t go.”
That sentiment captures the core logic of First Amendment jurisprudence: the government’s answer to speech it dislikes is rarely, if ever, censorship. It is the freedom to look away.
If you have questions about First Amendment rights or criminal charges related to expressive conduct in Texas, Chapell Law is here to help. Contact us today for a free consultation.
