Texas’ yearslong fight over restrictions on drag performances just took another major turn, and the judge handling the case did not leave much room for confusion. U.S. District Judge David Hittner struck down Texas Senate Bill 12 on Tuesday, ruling for a second time that the Texas drag show law violates First Amendment protections. The decision once again blocks the state from enforcing the controversial 2023 measure after an appeals court sent the case back to Hittner for another review.
Hittner, who was appointed to the federal bench by Ronald Reagan, addressed people who object to the performances directly in his ruling. Referring to “those who find such activities as described in this case offensive,” he offered a blunt alternative to government restrictions.
“The solution is relatively simple … just don’t go,” Hittner wrote.
The ruling represents the latest chapter in a legal fight that has stretched across several years. Texas lawmakers passed Senate Bill 12 in 2023 as part of an effort to regulate certain sexually oriented performances in public places or where minors could be present.
The law carried serious penalties. Businesses found in violation could face fines of up to $10,000, while performers could potentially face a Class A misdemeanor carrying as much as one year behind bars.
However, Hittner concluded that the law’s language swept far beyond a narrowly defined category of conduct.
He initially struck the measure down in 2023 on First Amendment grounds. The 5th U.S. Circuit Court of Appeals later returned the case to his courtroom with instructions for reassessing it. After applying that framework, Hittner again found the law unconstitutional.
The Texas Tribune reported that the appeals court’s decision required changes involving which plaintiffs and defendants could remain in the lawsuit, but Hittner said it “did not disturb” his earlier determination that Senate Bill 12 was unconstitutional.
This time, his reasoning also came with a pop culture example that made the scope of the law especially noticeable.
Hittner referenced Dolly Parton while examining language targeting performances that “[appeal] to the prurient interest.” He pointed to the possibility that someone could characterize Parton “as a voluptuous sex symbol because of her big hair, flamboyant clothes and breast exposure.”
His point was that legislation written broadly enough to capture one type of performance could reach much further than lawmakers intended.
“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote.
That concern was not limited to concerts or drag performances.
Hittner said the statute was broad enough that “cheerleading, dancing, live theater, and other common public occurrences” could potentially fall within its reach. He also determined that the law was unconstitutionally vague because it failed “to give a reasonable person notice of what is prohibited.”
The case has an additional Dolly Parton connection through plaintiff Brigitte Bandit, a Texas drag performer who has impersonated the singer during performances.
Bandit celebrated Tuesday’s ruling online by posting a screenshot of the decision with the caption, “Drag is free speech, b***H.”
She also announced plans to perform as Parton at an Austin bar Saturday. Bandit previously received a rhinestone guitar from Parton as a gift in 2023.
Still, the fight over Senate Bill 12 may not be finished.
Texas Attorney General Ken Paxton, who remains the defendant in the case, has since said he intends to appeal the ruling. That means the dispute could head back into the federal appeals process even after Hittner has now found the law unconstitutional twice.
For now, however, the ruling prevents Texas from enforcing the restrictions and puts the First Amendment back at the center of a debate that has moved through courts since the law was passed.
And after years of litigation, Hittner’s message to people who simply dislike the performances may end up being the line that follows the case everywhere: “just don’t go.”
