A Fifth Circuit panel grappled with questions of free speech and expression on Wednesday as it deliberated whether to uphold a lower court’s ruling that a Texas law dealing with sexually explicit performances and children is unconstitutional.

The September 2023 ruling by U.S. District Court Judge David Hittner found that Senate Bill 12, which creates criminal and civil penalties for those who perform or host sexually explicit shows in front of minors, could “virtually ban any performance in public,” including drag shows.

“It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, live theater, and other common public occurrences could possibly become a civil or criminal violation of SB 12,” he wrote in a 56-page order. 

It is not clear how quickly the three-judge panel of the New Orleans-based Fifth Circuit Court of Appeals will decide the appeal. During a one-hour hearing on Wednesday, the judges peppered attorneys with questions.

Judge Kurt Englehardt, appointed to the bench in 2001 by former President George W. Bush, inquired how SB 12 differs from existing obscenity laws that aim to protect children from indecent material. 

“We’ve always had age protections on performances or material that’s been considered of sexually adult nature,” he said, using examples like the Motion Picture Association of America’s rating system and how in most jurisdictions minors are not allowed in adult bookstores.

Brian Klosterboer, a staff attorney for the ACLU of Texas, said while those laws have exceptions for works that are deemed to hold artistic and scientific value, SB 12 carries no such exceptions. 

“This law has none of those guardrails,” Klosterboer said.

In district court proceedings, a great deal of attention was paid to the phrase “prurient interest in sex.” The phrase has its roots in obscenity law and was used in Senate Bill 12 to define what constitutes a sexually explicit performance. 

Hittner said in his order that the phrase is not clearly defined and could be open to interpretation. Judge James Dennis, who was appointed to the Fifth Circuit in 1995 by former President Bill Clinton, appeared to side with Hittner on Wednesday.

“If prurient interest is not defined in the statute, that means the statute could have many, many different meanings to many different people,” Dennis said.

William Cole, deputy solicitor general with the Texas Attorney General’s Office, disagreed with Dennis and said jury instructions would suffice in clearing up any confusion around the phrase’s definition.

“I think it’s well established that prurient interest has survived multiple vagueness challenges across the years from three-quarters of a century,” Cole said. “It’s a word that finds its genesis in Supreme Court case law going back to Roth. For this court to hold that it is vague would, I think, have serious knock-on effects in other areas of law like the criminal law, obscenity prosecutions and child prosecutions where that is a common term.”

Brian Klosterboer, a staff attorney for the ACLU of Texas, said SB 12 does not distinguish a child’s age and would conceivably treat an older teenager the same as it would a younger child. 

“We don’t even know whose prurient interest we’re talking about,” Klosterboer said.

Klosterboer and his co-counsel have argued the law amounts to an illegal ban on many public and private drag performances. They also argue the law is overly broad and chills free expression.

As originally proposed, SB 12 restricted minors from attending drag shows in Texas. The bill’s authors changed the language after an outcry from LGBTQ+ groups. Critics still have dubbed the bill a “drag ban.”

Under the law, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or engaging in “sexual conduct,” and also appealing to the “prurient interest in sex.” 

Those participating in the performance would be charged with a misdemeanor that carries penalties of up to one year in jail and a $4,000 fine.

Sexual conduct is defined under SB 12 as the exhibition of sexual acts and sex toys; contact between one person’s breasts, buttocks or any part of their genitals with another person’s; and gestures using “accessories or prosthetics that exaggerate male or female sexual characteristics.”

In his ruling, Hittner agreed with arguments made by lawyers for the LGBTQ+ organizations that language related to “accessories and prosthetics” targets drag performers.

“This language goes beyond mere content-based discrimination because it is now directed at the specific act of impersonating or exaggerating a sex other than the one a performer is assigned,” Hittner wrote. “Additionally, the court cannot ignore the legislative history and public statements by legislators purporting that SB 12 is at least in part a ban on drag shows.”

The plaintiffs in the lawsuit included The Woodlands Pride, a nonprofit that has hosted an annual Pride parade and festival on public property in the township since 2018.
“As the founder of the Woodlands Pride testified before the district court, democracy, liberation and freedom of speech are what he fought for as a veteran of the Iraq War. But SB 12 would force the Woodlands Pride and other plaintiffs to abandon drag shows or drive them into the shadows,” Klosterboer said in court on Wednesday. “Our constitution does not permit the government to drive non-obscene performances from public view without meeting strict scrutiny.”

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