U.S. Judge Hittner Blocks Texas Drag Ban Again: SB 12 Enjoined

• A federal judge in Houston has again blocked the enforcement of Texas Senate Bill 12, a law aimed at restricting drag performances where minors might be present.
• U.S. District Judge David Hittner ruled that the 2023 law is an unconstitutional infringement on First Amendment rights due to its overly broad definitions and its discriminatory nature against specific content and viewpoints.
• This marks the second time Judge Hittner has issued an injunction against SB 12, following a previous ruling in September 2023 that was later overturned by the Fifth Circuit.
• The judge cited the 2024 U.S. Supreme Court decision in `Moody v. NetChoice`, highlighting how SB 12's definitions of terms like "visual performances," "nude," and "prurient interest in sex" are excessively broad and could apply to a wide range of protected artistic expressions.

U.S. District Judge David Hittner reiterated that the law constitutes an unconstitutional restriction on First Amendment speech and protected activity, citing its overly broad definitions and its nature as both content and viewpoint discrimination.

A federal judge in Houston has once more halted the implementation of a Texas statute designed to regulate drag performances, marking the second such injunction against the controversial law. U.S. District Judge David Hittner, a Ronald Reagan appointee to the Southern District of Texas, issued his latest ruling on Tuesday, reaffirming that Senate Bill 12 (SB 12) cannot be enforced. This decision comes after a previous injunction by Judge Hittner in September 2023 was overturned by the Fifth Circuit in late 2025, which had allowed the Texas Attorney General Ken Paxton to resume enforcement of the law beginning in March 2026.

SB 12, enacted in 2023, sought to prohibit “sexually oriented performance to be presented on the premises in the presence of an individual younger than 18 years of age” within Texas businesses. Following its passage, LGBTQ+ advocacy groups and drag performers initiated legal action against the state, contending that the broad scope of the ban on “sexually oriented performance” constituted an unconstitutional violation of First Amendment rights. Judge Hittner’s latest ruling sides with these plaintiffs, reiterating his earlier finding that the law infringes upon protected speech and activity.

In his recent decision, Judge Hittner articulated two primary reasons for blocking the state’s enforcement of SB 12: the definitions it relies upon are excessively broad, and the law itself represents an unconstitutional form of both content and viewpoint discrimination. The judge specifically referenced the 2024 U.S. Supreme Court decision in `Moody v. NetChoice` and the two-part framework established by that precedent to support his analysis. He pointed to three terms within SB 12 that he found to be problematically defined: “visual performances,” “nude,” and “prurient interest in sex.”

The judge highlighted that the definition of “visual performances,” as incorporated from the Texas Penal Code, is so expansive that it could inadvertently restrict a wide array of public events with an audience, ranging from sports competitions to art exhibitions, far beyond its intended scope of regulating visual performances as a protected First Amendment activity. Furthermore, Hittner determined that the definitions of “nude” and “prurient interest in sex” are so broadly construed that they could potentially prohibit performances by mainstream artists like Lady Gaga or Miley Cyrus. He illustrated this by noting that elements considered “erotic” in countless popular performances, such as Elvis’s hip gyrations, Dolly Parton’s flamboyant attire, or Miley Cyrus’s 2013 MTV Video Music Awards performance, could fall under SB 12’s purview, leading to both civil and criminal penalties.

U.S. District Judge David Hittner reiterated that the law constitutes an unconstitutional restriction on First Amendment speech and protected activity, citing its overly broad definitions and its nature as both content and viewpoint discrimination. He observed that the Fifth Circuit had not overturned his previous finding regarding SB 12’s imposition of content-based and viewpoint-based restrictions on constitutionally protected expression. The judge further affirmed that the law’s reliance on overly broad definitions only reinforces its characterization as discriminatory based on content and viewpoint.

Hittner emphasized that even if SB 12 were somehow considered content-neutral—an argument the Attorney General has not advanced—it would still prohibit a vast array of constitutionally protected performances. He explained that the open-ended nature of the term “prurient interest in sex” allows for the selective targeting of specific aspects of performances that might be perceived as “in some sense erotic.” The judge concluded that SB 12 applies to numerous protected performances containing elements that could be deemed “in some sense erotic” or meet the law’s definitions of “nude” or “sexual conduct,” even if these performances are not legally obscene for adults or minors, and are therefore constitutionally protected.

Lawyers advising entertainment venues or performers in Texas should note that Senate Bill 12 remains unenforceable due to this second injunction, reinforcing First Amendment protections against overly broad content and viewpoint restrictions. Clients can continue to operate without immediate threat of enforcement under SB 12, but counsel should monitor the ongoing litigation for potential appeals or future legislative actions.

Source: Original reporting via Courthouse News.