Texas judge says drag shows aren’t always protected by First Amendment

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One of Texas’ most notoriously conservative federal judges issued an opinion this week supporting restrictions to drag shows, which stands apart from many other federal rulings that have struck down similar bans in other states as unconstitutional.

U.S. District Judge Matthew Kacsmaryk said that West Texas A&M University President Walter Wendler acted within his authority when he canceled a campus drag show. Students sued Wendler in March, alleging the president violated their free speech rights by banning a fundraiser featuring drag performers, but Kacsmaryk declined the request for injunctive relief.

In his opinion, Kacsmaryk wrote, at “this point in Free Speech jurisprudence, it is not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’”

Kacsmaryk’s opinion stands in contrast with several other decisions over free speech lawsuits related to drag shows. Around the country and in states run by Republicans, federal judges in Florida, Montana and Tennessee have successfully blocked laws aimed at banning or limiting drag shows from going into effect. In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled the state’s drag ban is unconstitutional in its effort to suppress First Amendment-protected speech.

Observers say Kacsmaryk’s decision is concerning because it represents an extreme departure from precedent in this area. The U.S. Supreme Court is expected to play a deciding factor as the numerous lawsuits over drag show bans make their way through the legal system. It’s unclear how Kacsmaryk’s decision could be factored in, as the West Texas A&M case concerns campus activities.

“FIRE strongly disagrees with the court’s approach to First Amendment analysis and its conclusions,” JT Morris, senior attorney for the Foundation for Individual Rights and Expression, a national group representing the students that advocates for free speech on campuses, said in a statement. “We will appeal, and our fight for the expressive rights of these brave college students will continue.”

The contrasting decision comes six months after an LGBTQ+ student group attempted to host the drag performance on campus.

In March, Wendler sent a letter to students, faculty and staff at West Texas A&M University canceling a drag show scheduled to take place on campus to raise money for The Trevor Project, a nonprofit that works to reduce suicides in the LGBTQ+ community. Wendler said drag shows “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.”

Days later, students filed a free speech lawsuit arguing Wendler is “openly defying the Constitution,” by restricting drag performances on campus. Plaintiff’s claimed that drag performances are “expressive conduct,” protected by the First Amendment.

Drag shows frequently feature men dressing as women in exaggerated styles and have been a mainstay in the LGBTQ+ community for decades. Drag performers say their work is an expression of queer joy — and a form of constitutionally-protected speech about societal gender norms.

LGBTQ+ groups and performers made similar claims in another federal lawsuit that challenges a Texas law that restricts drag shows from being performed in front of children. U.S. District Judge David Hittner temporarily blocked the law, arguing that banning drag shows is “likely” unconstitutional.

But Kacsmaryk offered a differing assessment in his Thursday order. He said the students’ definition of “expressive conduct” failed to meet the necessary standards to “decide a Free Speech campus case.”

The Amarillo-based judge argued that even if the drag show is lawful, the university can regulate it in the interest of protecting children. The organizers said the event was open to children accompanied by a parent or guardian. Kacsmaryk added that Wendler is immune from consequences stemming from his decision to cancel the drag show because the university president was acting as a government official within his authority.

The Office of the Attorney General quickly took notice of Kacsmaryk’s order, requesting Judge Hittner throw out the case against the Texas law restricting drag shows.

Brian Klosterboer, an attorney with the American Civil Liberties Union of Texas who is suing the state over the drag ban, said the two decisions concern different arenas: the West Texas A&M lawsuit concerns campus activities, while the new law is a statewide restriction.

Klosterboer said he hopes the U.S. Court of Appeals for the 5th Circuit will overturn Kacsmaryk’s order, which he described as going “against the great weight of Supreme Court decisions.”

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