Judge Cites Dolly Parton as Texas Drag Law Is Struck Down Again

A federal judge has again struck down Texas’ drag performance law, ruling that Senate Bill 12 violates the First Amendment and citing Dolly Parton, Elvis Presley and Miley Cyrus to show how broadly the restrictions could reach.

U.S. District Judge David Hittner permanently blocked Texas Attorney General Ken Paxton from enforcing the 2023 law Tuesday, finding that its restrictions on sexually oriented performances are unconstitutionally broad and vague.

The decision came the same day Parton died at age 80, giving the judge’s references to the country music icon an unexpected resonance. Nothing in the opinion indicates Hittner was responding to her death.

Parton appears repeatedly in the ruling as Hittner examined how performances considered provocative or sexual by some audiences could fall within the law’s language. He pointed to her flamboyant stage image, along with Elvis Presley’s hip movements and Miley Cyrus’ 2013 MTV Video Music Awards performance.

“There are ‘erotic’ elements in countless popular performances that could be subject to both civil and criminal penalties under S.B. 12,” Hittner wrote.

The examples supported his finding that the law could punish substantially more protected expression than Texas is constitutionally permitted to regulate.

Senate Bill 12 applies to certain sexually oriented performances on public property or in the presence of minors. The final version does not use the word “drag,” although earlier drafts of the legislation expressly referred to drag performances.

The law covers performances involving nudity, sexual conduct, and material appealing to a prurient interest in sex. Individuals can face a Class A misdemeanor for violations, while businesses can face civil penalties of up to $10,000 for each prohibited performance.

Hittner found that the wording did not give performers or businesses adequate notice of what conduct could result in punishment and could reach a wide range of constitutionally protected entertainment.

The lawsuit was brought by drag performer Brigitte Bandit and other plaintiffs who argued that the law threatened their First Amendment rights. Bandit has performed as Dolly Parton, making the country singer directly relevant to the dispute rather than simply a hypothetical example chosen by the court.

Tuesday’s decision marks the second time Hittner has found S.B. 12 unconstitutional.

He first blocked the law in September 2023. The U.S. Court of Appeals for the Fifth Circuit later vacated that injunction and sent the case back for reconsideration under a newer Supreme Court standard governing facial First Amendment challenges.

The appeals court did not rule that the Texas law was constitutional. It instead directed Hittner to reconsider whether the law’s unconstitutional applications were substantial enough compared with the conduct Texas could lawfully regulate.

S.B. 12 was allowed to take effect in March while the case returned to the district court.

After reconsidering the challenge, Hittner again concluded that the law could not survive First Amendment scrutiny. He found that its unconstitutional reach substantially outweighed its lawful applications and that its wording remained too unclear to provide sufficient guidance to performers, businesses and law enforcement.

The ruling also rejected Paxton’s request for additional discovery and another trial before the court decided the renewed constitutional challenge.

Hittner closed the opinion with a direct response to people who object to the performances covered by the case.

“Finally, for those who find such activities as described in this case offensive, the solution is relatively simple ... just don’t go,” he wrote.

Paxton has said he will appeal the ruling, which would send the dispute back to the Fifth Circuit after nearly three years of litigation.

For now, Hittner’s injunction prevents the Texas attorney general from enforcing S.B. 12 while the state pursues its next appeal.