August 26, 2026
A federal judge has once again blocked Texas from enforcing its restrictions on certain drag performances, ruling that the state's law violates constitutional protections for free expression.
In an unusual and memorable decision, U.S. District Judge David Hittner used country music icon Dolly Parton as an example to explain why the Texas law is so broad that it could potentially sweep far beyond drag performances. His ruling revived a legal battle that began when Texas lawmakers passed Senate Bill 12 in 2023.
The decision is the second time Hittner has ruled the law unconstitutional. The case returned to his court after the 5th U.S. Circuit Court of Appeals sent it back for reconsideration. For now, Texas officials are again barred from enforcing the disputed restrictions.
What Texas Senate Bill 12 sought to do
Texas lawmakers passed Senate Bill 12 in 2023 as part of a broader effort to restrict sexually oriented performances in locations where minors could be present.
Although the legislation did not simply prohibit all drag shows by name, its definition of prohibited performances included conduct such as sexually suggestive dancing and certain forms of revealing clothing or prosthetic body parts.
Businesses hosting performances that fell within the law's definition could face civil and criminal penalties.
Supporters of the law argued that Texas had a responsibility to protect children from sexually explicit entertainment.
Opponents, including drag performers and LGBTQ+ organizations, argued that the legislation was written so broadly that it could suppress protected artistic and expressive activity.
That disagreement became the central issue in the federal court battle.
Why Dolly Parton appeared in the ruling
Hittner's reference to Dolly Parton was designed to illustrate the potential reach of the law.
The judge reasoned that the statute's language could potentially encompass performances that most people would not ordinarily consider sexually explicit or inappropriate.
Parton's famously flamboyant appearance — including her large hair and distinctive clothing — became one example of how an overly broad law could potentially be applied to mainstream entertainment.
The judge also pointed to other well-known performers and forms of entertainment to demonstrate the problem.
The issue, in Hittner's view, was not whether a particular performance was offensive to some people. The constitutional question was whether the government could impose restrictions using language broad enough to potentially capture a wide range of protected expression.
The judge's message to people offended by drag
Hittner also offered a straightforward answer to people who object to drag performances: they do not have to attend them.
His reasoning was that personal offense alone does not provide the government with sufficient grounds to prohibit constitutionally protected expression.
That distinction is central to First Amendment law.
The government can regulate certain forms of conduct, particularly where legitimate interests such as public safety or protection of children are involved. But laws restricting speech or expressive performances must still be sufficiently clear and narrowly tailored.
Hittner concluded that Texas's law failed that constitutional test because of the breadth and ambiguity of its language.
The law was described as vague and overbroad
Two of the most important legal concepts in the ruling are vagueness and overbreadth.
A law can be considered unconstitutionally vague when ordinary people cannot reasonably determine what conduct is prohibited.
That creates a serious problem for free speech because performers, businesses and event organizers may avoid lawful expression simply because they fear punishment.
The overbreadth doctrine addresses a different problem. A law can be unconstitutional when it restricts substantially more protected expression than is necessary to achieve the government's legitimate objective.
Hittner concluded that Texas Senate Bill 12 suffered from both problems.
The concern was that the law could potentially reach performances that were not sexually explicit at all. Earlier legal challenges similarly argued that the wording could potentially affect everything from theatrical performances to other forms of entertainment.
Drag performers challenged the law
Drag performer Brigitte Bandit was among those who challenged the Texas restrictions.
Bandit and other plaintiffs argued that drag is a form of artistic expression protected by the First Amendment.
The case placed drag performers at the center of a larger national debate over whether governments can regulate performances based on their content, appearance or perceived sexual character.
For performers, the consequences were potentially significant.
A law that is unclear about what constitutes an illegal performance can create uncertainty for venues. Businesses may cancel performances or refuse to host drag events rather than risk lawsuits, fines or criminal penalties.
That is what free-speech advocates describe as a chilling effect: expression may disappear even before the government directly punishes anyone.
Texas argues that the law protects children
Texas officials have defended the legislation as a child-protection measure.
The state has argued that sexually explicit performances should not be accessible to minors and that lawmakers have the authority to regulate businesses offering such entertainment.
That argument reflects a broader national movement in which conservative lawmakers have sought restrictions on drag performances, particularly when children are present.
But the federal court's question was not simply whether protecting children is a legitimate government objective.
The issue was whether Texas chose constitutional means to achieve that objective.
Hittner concluded that the law went too far.
Attorney General Ken Paxton plans to fight back
Texas Attorney General Ken Paxton has indicated that the state will continue fighting the ruling.
Paxton criticized the decision and said he plans to appeal, setting up another potential battle before the federal appeals courts.
The legal fight could therefore continue well beyond Tuesday's decision.
The 5th U.S. Circuit Court of Appeals has already played a significant role in the case. Its earlier intervention allowed the law to take effect while the litigation continued, eventually sending the dispute back to Hittner for another ruling.
The next stage of the case could determine whether Texas ultimately gets another opportunity to defend the law at the appellate level.
A broader First Amendment battle
The case is about more than drag shows.
At its core is a question about how far the government can go when regulating expressive performances.
Drag can involve comedy, dance, music, costumes, political commentary and theatrical storytelling. Because of that mixture of entertainment and expression, courts have repeatedly been asked to determine where legitimate regulation ends and unconstitutional censorship begins.
Hittner's Dolly Parton example highlights that difficulty.
If lawmakers write a definition of prohibited conduct too broadly, a statute intended to regulate a narrow category of performances can potentially affect mainstream entertainers as well.
That was one of the central warnings contained in the judge's reasoning.
The decision comes amid a larger national debate
Texas is not alone in confronting legal challenges over restrictions on drag performances.
Across the United States, lawmakers and courts have wrestled with legislation governing drag shows, especially performances involving minors.
Supporters of restrictions say governments should have greater authority to shield children from sexualized entertainment.
Opponents argue that such laws can discriminate against LGBTQ+ performers and suppress protected artistic expression.
Courts have increasingly become the arena where those competing arguments are tested against the First Amendment.
Texas's case is particularly significant because of the size of the state, the political importance of its legislation and the continuing involvement of the conservative 5th Circuit.
What happens next
For the moment, the ruling means Texas cannot enforce the challenged restrictions covered by Hittner's decision.
But the legal battle is unlikely to end there.
Paxton's expected appeal could once again place the law before the federal appeals courts. Depending on the outcome, the dispute could eventually reach the Supreme Court.
For drag performers and venues, however, the immediate effect is clear: the latest federal ruling provides another layer of legal protection against enforcement of the Texas restrictions.
The case also demonstrates why the wording of a law matters as much as its stated purpose.
Texas lawmakers said their goal was to protect children from inappropriate performances. Hittner's ruling instead focused on what the law actually says and how broadly it could be applied.
His Dolly Parton analogy made that constitutional concern unusually easy to understand.
The judge's message was essentially that the government cannot write a law so broadly that protected performers become potential targets simply because some people find their appearance or performances objectionable.
And for Texans who do not want to watch drag shows, Hittner offered an uncomplicated alternative to government censorship: they can simply choose not to attend.
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