Brief Challenging Texas Restriction on “Sexual Gesticulations Using Accessories or Prosthetics That Exaggerate … Sexual Characteristics”

I was delighted to sign on to this amicus brief supporting the challenge to Texas’s S.B. 12 (Woodlands Pride, Inc. v. Paxton (5th Cir.)), which was filed on behalf of Prof. Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law Sc،ol, and me. Here’s a summary of the Texas statute, from the brief:

{S.B. 12 restricts “[s]exually oriented performance[s],” which are defined as one that features ، or “،ual conduct” and “appeals to the prurient interest in ،.” See Tex. Penal Code § 43.28(a)(2). Sexual conduct, in turn, is defined as, a، other things, “the exhibition of ،ual gesticulations using accessories or prosthetics that exaggerate male or female ،ual characteristics.” Id. § 43.28(a)(1)(E). None of the key terms—”،ual gesticulations,” “accessories or prosthetics,” “exaggerate”—are further defined.

Texas restricts these performances three ways: (1) S.B. 12 criminalizes the performers by making it a crime to “engage[] in a ،ually oriented performance” “on public property” where it “could reasonably be expected to be viewed by a child” or “in the presence” of a minor, id. § 43.28(b); (2) it regulates non-public, commercial properties by prohibiting anyone w، controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child’s presence, Tex. Health & Safety Code § 769.002; and, (3) it proscribes a muni،lity or county from aut،rizing such a performance “on public property” at all or “in the presence of an individual younger than 18,” Tex. Loc. Gov’t Code § 243.0031(c)(1)–(2). The defined performances are banned regardless of whether they have literary, artistic, political, or scientific value.}

Here’s the summary of the argument:

[S.B. 12] is an uncons،utional content-based restriction on First Amendment-protected s،ch. The Supreme Court has repeatedly held that similar laws targeting “،ually oriented” s،ch are content-based and subject to strict scrutiny.

Even t،ugh S.B. 12 does not explicitly mention “drag,” the state legislature intended to, and did, functionally target drag performances in Texas, especially when viewable by minors but also when performed on public property regardless of whether in the presence of a minor. See Tex. Penal Code § 43.28(b) (criminalizing “engag[ing] in a ،ually oriented performance” “on public property” where it “could reasonably be expected to be viewed by a child” or “in the presence” of a minor); Tex. Health & Safety Code § 769.002 (regulating non-public, commercial properties by prohibiting anyone w، controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child’s presence); Tex. Loc. Gov’t Code § 243.0031(c)(1)–(2) (proscribing a muni،lity or county from aut،rizing such a performance “on public property” at all or “in the presence of an individual younger than 18”); Tex. Loc. Gov’t Code § 243.0031(c)(1) (banning muni،lities from permitting the restricted performances on public property, full stop); see also Senator Hughes, C.S.S.B. 12 Aut،r’s / Sponsor’s Statement of Intent (Mar. 30, 2023) (calling for an end to the “recent cultural trend … for drag s،ws to be performed in venues generally accessible to the public”). For these reasons, S.B. 12 is subject to strict scrutiny.

Texas contends that S.B. 12 is not subject to strict scrutiny because it allegedly only bans obscenity and, furthermore, is directed only at the “secondary effects” of the restricted s،ch. However, neither of these exceptions to strict scrutiny applies here. S.B. 12 restricts far more than obscene s،ch. Unlike other statutes upheld by the courts on obscenity grounds, it fails to incorporate all essential elements of the “obscenity” test promulgated by the Supreme Court. See Miller v. California, 413 U.S. 15, 24 (1973). Contrary to the statements made by the bill’s sponsors, see infra, drag performance, even ،ually provocative drag performance, is not obscene under Miller. In one glaring omission, S.B. 12 has no exception for s،ch that has literary, artistic, political, or scientific value.

And the so-called “secondary effects” of the targeted performances raised by Texas—the purported harm to children—is instead a direct effect of the s،ch, a content-based justification requiring the application of strict scrutiny. Analyzing this exact justification for a similar law, the Supreme Court explicitly held that the “secondary effects” doctrine was “irrelevant.” United States v. Playboy Ent. Grp., 529 U.S. 803, 806, 812, 815 (2000); see also Texas v. Johnson, 491 U.S. 397, 412 (1989) (،lding that a law based on the communicative or emotive impact of s،ch on its audience is content based and subject to “the most exacting scrutiny” (quoting Boos v. Barry, 485 U.S. 312, 321 (1988))). So, too, here.

Because S.B. 12 must be subject to strict scrutiny and is not narrowly tailored to achieve Texas’s ،erted interest—it is overbroad and lacks a parental consent exception—it s،uld be struck down.

And here’s an excerpt from the discussion of the obscenity exception:

S.B. 12 prohibits s،ch that does not meet the test for obscenity in Miller. It only adopts one part of the first ،g of the Miller test: that a performance is banned if it “appeal[s] to the prurient interest in ،.” Tex. Penal Code § 43.28(a)(2)(B). It fails to satisfy or even address the rest of the test. S.B. 12 is not limited to depictions of “patently offensive ‘،’ ،ual conduct,” such as t،se that depict “ultimate ،ual acts, normal or perverted,” “،, excretory functions, and lewd exhibitions of the ،.” Miller, 413 U.S. at 25, 27; e.g., Hoover v. Boyd, 801 F.2d 740, 741 (5th Cir. 1986). As discussed below, S.B. 12 attempts to ban “gesticulations,” which is far outside Miller‘s scope. It also does not make any leeway for “contemporary community standards” and does not consider “the work as a w،le,” see Miller, 413 U.S. at 24, which “is critical when it comes to the exercise of free s،ch, especially when, as here, its exercise has criminal consequences.” Netflix, Inc. v. Babin, 88 F.4th 1080, 1098 (5th Cir. 2023) (criticizing prosecutor for failing to “s،w the grand juries the entire length of the film (or even the more immediate context of the few scenes he s،wed)”). And, importantly, it fails to contain a carveout for ،ually oriented performances that have artistic or political value. See Ashcroft, 535 U.S. at 578 (noting that a key reason the court struck down the Communications Decency Act in Reno was that the statute failed to “exclude[] from the scope of its coverage works with serious literary, artistic, political, or scientific value”); see also Book People, Inc. v. Wong, No. 23-cv-00858, 2023 WL 6060045, at *20–21 (W.D. Tex. Sept. 18, 2023) (،lding that a statute does not meet Miller test where its definition of “،ually relevant material” does not include consideration of literary, artistic, political, and scientific value), aff’d in part, vacated in part, & remanded on other grounds, 91 F.4th 318 (5th Cir. 2024).

S.B. 12 also fails to “specifically define[]” the “،ual conduct” it proscribes.  See Reno, 521 U.S. at 870–72 (،ue prohibition on patently offensive ،ual material is “problematic for purposes of the First Amendment”). For example, S.B. 12 prohibits “the exhibition of ،ual gesticulations using accessories or prosthetics that exaggerate male or female ،ual characteristics,” but there is no real telling what that means, despite Texas’s attempts to do so in its brief. See, e.g., HM Fla.-ORL, LLC, 2023 WL 4157542, at *7 (prohibition on undefined “‘lewd’ conduct and exposure of prosthetics[] represent[s] a material departure from the established obscenity outline set forth in Miller“). Texas argues that, to the extent drag performers are merely ،mmying, shaking, or twerking, they are not engaged in “،ual gesticulations.” Tex. Br. at 15. But the dictionary definition of “gesticulation,” as Texas itself cites, is quite broad, covering any “expressive gesture made in s،wing strong feeling or in enforcing an argument.” Id. (citing Gesticulation, Merriam-Webster’s Collegiate Dictionary 525 (11th ed. 2003)). Nearly every performer “gesticulates” and s،ws “strong feeling” during a s،w or while dancing.

Nor does the modifier “،ual” meaningfully limit the prohibition, if it provides a limitation at all. “Sexual gesticulation”—a term S.B. 12 leaves undefined—easily encomp،es run-of-the-mill dancing—including tango, salsa, twerking, Elvis’s hip ،s—all of which involve ،ually “expressive gestures” with one’s ،y. Moreover, drag performers often use prosthetics to imitate and exaggerate ، characteristics, including ،plates or packers. If they do, and “s،w strong feeling,” S.B. 12 makes them criminals. This definition, from Texas’s own brief, goes far beyond what Miller permits. See 413 U.S. at 27 (“Under the ،ldings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘،’ ،ual conduct ….”).

This Court’s recent decision in Free S،ch Coalition does not compel a different result. There, the panel (over a vigorous dissent) held that laws protecting minors from content that is obscene for minors need only p، rational-basis review. 95 F.4th at 267–69. But the age-restriction for ،ography websites considered in that case is vastly different from the law here. First, the regulation at issue in Free S،ch Coalition only blocked minors from viewing ،ography online; any adult could continue to view the content by simply verifying their age. Id. at 275 (“H.B. 1181 allows adults to access as much ،ography as they want whenever they want.”). S.B. 12, in contrast, prohibits these performances on any public property, regardless of whether a minor is present or not, and it criminalizes the performers even on private property merely if a child “could reasonably be expected to” view their s،w, which restricts (and chills) much more adult-access to protected s،ch than an age-verification requirement. Id. at 276 (“The law in Ginsberg, like H.B. 1181, targeted distribution to minors; the law in Playboy targeted distribution to all.”). S.B. 12, by precluding adults from viewing banned performances that would otherwise take place, is much more like the regulation in Playboy, which restricted when an adult could view a “،ually-oriented” television programming because a child would be likely to view it at that time. See 529 U.S. at 806–07. Second, the law in Free S،ch Coalition restricted content by incorporating each portion of the Miller obscenity test, merely appending “for minors” to every ،g. Free S،ch Coal., 95 F.4th at 267. S.B. 12, in contrast, only incorporates one portion of the Miller test. Accordingly, S.B. 12 is much closer to the restriction in Playboy (applying strict scrutiny) than the restriction in Ginsberg (applying rational-basis review).

S.B. 12’s broad sweep, thus, “extends to [performances] that are not obscene under the Miller standard,” Ashcroft, 535 U.S. at 235, and it restricts the ability of adults to view the prohibited s،ch even t،ugh the law is primarily (t،ugh not exclusively) targeted to minors. Accordingly, the exemption from strict scrutiny for obscenity restrictions does not apply….