Woodlands Pride v. Paxton

 Amicus Brief in Support of Plaintiffs-Appellees - Woodlands Pride v. Paxton

When the Texas legislature joined nationwide efforts to censor drag shows, it passed a law that reached much further. S.B. 12 criminalized “sexually oriented performance[s]” on “public property” or “in the presence of an individual younger than 18 years of age.” 

The ACLU of Texas, representing a coalition of LGBTQ plaintiffs, sued on First Amendment grounds. After a federal district court agreed, Texas appealed to the United States Court of Appeals for the Fifth Circuit. Texas argued that the law applied to more than just drag shows and that if drag shows are expressive at all, the law was narrowly tailored to protect children from sexualized expression.

On April 17, 2024, FIRE filed an amicus curiae brief supporting the ACLU of Texas’s challenge to the law. A good deal of expression comes in the form of expressive conduct, like burning or saluting the flag, kneeling in prayer, playing music, or performing on stage. As FIRE explains, First Amendment protection for a performance does not depend on its genre. If, as Texas argued, expressive conduct were protected only if it sent a “particularized message,” then a host of artistic expression could be banned. Art and TV critics exist for a reason–art pieces, films, and similar expression often invokes spirited discussion about the meaning.

FIRE also argued that while the State can ban obscene expression, or expression that is obscene to minors, Texas’s legislature inexplicably chose not to include the important guardrails that prevent obscenity regulations from reaching protected expression. For example, Texas did not include well-recognized language preventing the law from reaching performances that, when evaluated as a whole, have serious literary, artistic, political, or scientific value. That means that parents who reasonably believe a drag performance has social value could not allow their teenager to attend. But parents, not legislatures, get to make decisions about what protected expression is appropriate for their children.