I was pleased to sign this amicus brief in support of Texas' challenge to SB 12.Woodlands Pride, Inc. v. Paxton (5th Cir.)), filed on behalf of Professor Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, and myself. The following is a brief summary of Texas statutes.
{SB 12 provides:[s]Sexually Oriented Achievements[s],' is defined as featuring nudity or 'sexual activity' and 'complaining of a prurient interest in sex.' see Texas Penal Code § 43.28(a)(2). Sexual intercourse is defined, among other things, as “the display of sexual gestures through the use of jewelry or prosthetics that exaggerate male or female sexual characteristics.” ID. § 43.28(a)(1)(E). Key terms such as “sexual gesture”, “accessory or prosthesis”, and “exaggeration” are no longer defined.
Texas restricts these performances in three ways: (1) SB 12 criminalizes performers by criminalizing “participation.”[] Sexually oriented performances “on public property” or “in the presence of minors” that “could reasonably be expected to be viewed by children”; med. § 43.28(b); (2) Regulates private commercial property by prohibiting a person in control of the premises of a commercial enterprise from permitting restricted performances on the premises where children are present (Texas Health and Safety Code § 769.002). (3) Prohibits a municipality or county from permitting any such performance “on public property” or “in the presence of persons under 18 years of age.” Tex. Loc. Government Code § 243.0031(c)(1)–(2). Performances as defined are prohibited, regardless of whether they have literary, artistic, political or scientific value.}
To summarize the argument:
[S.B. 12] Unconstitutional content-based restrictions on speech protected by the First Amendment. The Supreme Court has repeatedly ruled that similar laws targeting “sexually oriented” speech are content-based and subject to rigorous scrutiny.
Even though SB 12 does not explicitly mention “drag,” the state legislature functionally targets drag performances in Texas, especially when performed in public places with or without minors present, as well as when visible to minors. I did it and I did it. see Texas Penal Code § 43.28(b) (criminalizing “engag”)[ing] “Sexually oriented performances “in a public place” or “in the presence of minors” that could reasonably be expected to be viewed by children,” Tex. Health & Safety Code § 769.002 (private regulation, person in control of premises of commercial enterprise) By prohibiting the permitting of restricted conduct in the presence of children on such premises, a municipality or county may, under Tex. Does not authorize such performances “in the presence of persons under 18 years of age” (Tex. Loc. Gov't Code § 243.0031(c)(1) limited performances in public places, complete suspension); See also Senator Hughes, CSSB 12 Statement of Author/Sponsor Intent (March 30, 2023) (calling for an end to “the recent cultural trend of performing drag shows in venues generally accessible to the public”). For these reasons, SB 12 comes under intense scrutiny.
Texas argues that SB 12 is not subject to strict scrutiny because it only prohibits obscenity and, moreover, targets only the “collateral effects” of limited speech. However, this exception to strict scrutiny does not apply here. SB 12 restricts much more than obscene language. Unlike other court-recognized statutes on pornography, this statute does not contain all the essential elements of the “pornography” test promulgated by the Supreme Court. See Miller v. California, 413 US 15, 24 (1973). Contrary to the statement of the bill sponsor, see belowDrag performances, even sexually provocative ones, are not obscene. miller. In one glaring omission, SB 12 makes no exceptions for speech that has literary, artistic, political, or scientific value.
And the so-called “secondary effects” of targeted performances (which purportedly harm children), as claimed by Texas, are actually directly Effectiveness of speech, content-based justification requiring rigorous application of scrutiny. In analyzing this precise justification for similar laws, the Supreme Court explicitly ruled that the “secondary effect” doctrine was “inadequate.” United States vs. Playboy Entertainment. Grp.529 US 803, 806, 812, 815 (2000); See Texas v. Johnson491 US 397, 412 (1989) (holding that laws based on the communicative or emotional impact of words on an audience are content-based and subject to “the strictest scrutiny” (citing) boo vs barry, 485 US 312, 321 (1988)). So, same thing here.
SB 12 should be subject to rigorous scrutiny and repealed because it is not narrowly tailored to achieve the interests claimed by Texas (it is overly broad and lacks a parental consent exception).
An excerpt from the discussion of the pornography exception follows:
SB 12 prohibits speech that does not meet the standard for obscenity. miller. Only one portion of the first prong is adopted. miller Test: If you “appeal” you will be banned from performing.[s] “Lawful interest in sex.” Tex. Penal Code § 43.28(a)(2)(B). This does not satisfy or even address the rest of the test. SB 12 states that “only explicitly offensive 'hard' depictions It is not limited. ‘Core’ sexual acts’ include ‘normal or perverted ultimate sexual acts’, ‘masturbation, excretory functions, and indecent exposure of the genitals’. miller413 US 25, 27; for example, Hoover vs. Boyd, 801 F.2d 740, 741 (5th Cir. 1986). As discussed below, SB 12 attempts to ban “gestures.” millerscope. It also makes no room for ‘modern community standards’ and does not consider the ‘work as a whole’. see miller413 US at 24, which is “critical when exercising free speech, especially when, as here, the exercise of free speech has criminal consequences.” Netflix, Inc. teen bavin, 88 F.4th 1080, 1098 (5th Cir. 2023) (criticizing prosecutor for failing to show grand jury the full length of the film (or more immediate context of the few scenes he showed)). And importantly, it does not include any distinction between sexual performances that have artistic or political value. View Ashcroft535 US at 578 (noting the key reasons the court struck down the Communications Decency Act) reno The point is that the statute failed to “exclude.”[] in the scope of coverage of works of serious literary, artistic, political or scientific value”); Book People, Inc. v. See also WongNo. 23-cv-00858, 2023 WL 6060045, *20–21 (WD Tex. Sep. 18, 2023) (finding statute not satisfied). miller tests that the definition of “sexually related material” does not include consideration of its literary, artistic, political or scientific value); Af'd Some, some vacated, re-detained. for other reasons91 F.4th 318 (5th Cir. 2024).
SB 12 also “failed to specifically define:[]”This refers to the 'sexual act' defined as “. View Reno, 521 US at 870–72 (a vague prohibition on explicitly objectionable sexual content is “problematic for the purposes of the First Amendment”). For example, SB 12 prohibits “display of sexual gestures using accessories or prosthetics that exaggerate male or female sexual characteristics,” but we don't really know what that means, despite Texas' brief attempt to do so. . See for example:, HM Florida-ORL, LLC2023 WL 4157542, *7 (prohibition on undefined “‘lewd’ conduct and exposure of prosthetics).[] to represent[s] If there is a material departure from the established obscenity outline set forth in miller“). Texas maintains that drag performers do not engage in “sexual gestures” to the extent that they merely sway, sway, and twerk. Tex. Br. at 15. However, the dictionary definition of “gesture” is the same as Texas itself. Quotations are very broad, encompassing “expressive gestures that express strong feelings or force a claim.” ID. (Quotation gesture, Merriam-Webster College Dictionary 525 (11th ed. 2003)). Almost all performers make “gestures” and show “strong feelings” while performing a show or dance.
Nor does it meaningfully limit the prohibition, even if the modifier “sexual” does provide a limitation. “Sexual gestures,” an undefined term in SB 12, easily encompasses everyday dances such as tango, salsa, twerking and Elvis’ hip thrusts, all of which involve sexual “expressive gestures” using the body. Furthermore, drag performers often use prosthetics to mimic and exaggerate sexual features, including breastplates or packers. If they do that and “show strong feelings,” SB 12 makes them criminals. This definition, from Texas' own briefing: miller permission. see 413 US at 27 (“Under the retention provisions announced today, no person will be subject to prosecution for the sale or exposure of pornography unless the material depicts or depicts a clearly offensive ‘core’ sexual act….”).
The court's recent ruling is press freedom union It doesn't force a different outcome. There, the panel argued (with strong dissent) that there are laws protecting minors from obscene content. for minors It only needs to pass review based on reasonable standards. 95 F.4 at 267–69. However, the age restrictions for the pornography sites considered in this case are significantly different from the laws here. First, the regulation in question is press freedom union Only blocked minor viewing pornography online; Any adult can continue viewing content simply by verifying their age. ID. at 275 (“HB 1181 allows adults to access as much pornography as they want, whenever they want.”). SB 12, by contrast, bans such performances in all public places, regardless of whether minors are present, and criminalizes performers on private property only if children are “reasonably expected to view” their show. (And creepy) There's a lot more adult access to protected speech than age verification requirements. ID. at 276 (“The law ginsburgLike HB 1181, targeted distribution targets include: minor; law playboy Distribute to target every.”). SB 12 is much more similar to the provisions of SB 12 by prohibiting adults from viewing prohibited performances. playboyThis limited when adults could watch “sexual” TV programming because children were more likely to watch it at those times. see 529 US of 806–07. Second, the law press freedom union Integrate each part to create limited content miller Obscenity test, just adding “for minors” to every terminal. Free speech coal.95 F.4th at 267. In contrast, SB 12 miller test. So SB 12 is much closer to these limits: playboy (Strict scrutiny applied) ginsburg (Application of reasonable standard review).
Therefore, the broad scope of SB 12 “extends to: [performances] not obscene miller standard,” Ashcroft, 535 US at 235, limits adults' ability to view prohibited speech, even though the law is primarily (but not exclusively) directed at minors. Therefore, the strict screening exemption for pornography restrictions does not apply…