Woodlands Pride v. Paxton

Case: 23-20480 Document: 286-1 Page: 1 Date Filed: 11/06/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

November 6, 2025

No. 23-20480

Lyle W. Cayce

____________ Clerk

The Woodlands Pride, Incorporated; Abilene Pride

Alliance; Extragrams, L.L.C.; 360 Queen Entertainment,

L.L.C.; Brigitte Bandit,

Plaintiffs—Appellees,

versus

Warren Kenneth Paxton, In an official capacity as Attorney General

of Texas; Brett Ligon, In an official capacity as District Attorney of

Montgomery County; Montgomery County, Texas; James

Hicks, In an official capacity as District Attorney of Taylor County;

Taylor County, Texas; City of Abilene, Texas,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:23-CV-2847

______________________________

Before Dennis, Southwick, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

A Texas law regulates sexually oriented performances on public

property and in the presence of minors. A drag performer and others in the

drag industry brought a pre-enforcement challenge, alleging that the law

Case: 23-20480 Document: 286-1 Page: 2 Date Filed: 11/06/2025

No. 23-20480

facially violates the First Amendment. 1 After a two-day bench trial, the

district court agreed with the plaintiffs and permanently enjoined the

appellants from enforcing the law. We vacate that injunction and remand.

I.

A.

Texas Senate Bill 12 (“S.B. 12”) regulates “sexually oriented

performances” on public property and in the presence of minors. See Tex.

Health & Safety Code Ann. § 769.002; Tex. Loc. Gov’t Code

Ann. § 243.0031; Tex. Penal Code Ann. § 43.28. A “sexually oriented

performance” is “a visual performance” that (1) features a performer who

“is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient

interest in sex.” Tex. Penal Code Ann. § 43.28(a)(2).

For the first prong, S.B. 12 defines the relevant conduct. “Nude”

means “entirely unclothed” or “clothed in a manner that leaves uncovered

or visible through less than fully opaque clothing any portion of the breasts

below the top of the areola of the breasts, if the person is female, or any

portion of the genitals or buttocks.” Tex. Bus. & Com. Code Ann. §

102.051(1). “Sexual conduct” means: (1) “the exhibition or representation,

actual or simulated, of sexual acts, including vaginal sex, anal sex, and

masturbation”; (2) “the exhibition or representation, actual or simulated, of

male or female genitals in a lewd state, including a state of sexual stimulation

or arousal”; (3) “the exhibition of a device designed and marketed as useful

primarily for the sexual stimulation of male or female genitals”; (4) “actual

contact or simulated contact occurring between one person and the buttocks,

breast, or any part of the genitals of another person”; or (5) “the exhibition

_____________________

1

Plaintiffs use the word “drag” to describe their activities and they call the law

that they challenge a “drag ban.” The text of the law does not include the word “drag.”

2

Case: 23-20480 Document: 286-1 Page: 3 Date Filed: 11/06/2025

No. 23-20480

of sexual gesticulations using accessories or prosthetics that exaggerate male

or female sexual characteristics.” Tex. Penal Code Ann. § 43.28(a)(1).

As for the second prong, Supreme Court precedent is instructive. 2 To

appeal to the “prurient interest in sex,” material, at a minimum, must be “in

some sense erotic.” Ashcroft v. ACLU, 535 U.S. 564, 579 (2002).

B.

S.B. 12 regulates sexually oriented performances in three ways.

Section One prohibits a “person who controls the premises of a commercial

enterprise” from “allow[ing] a sexually oriented performance to be

presented on the premises in the presence of an individual younger than 18

years of age.” Tex. Health & Safety Code Ann. § 769.002(a). It is

enforced by the Attorney General of Texas, see id. § 769.002(c), who is an

appellant here.

Section Two authorizes municipalities and counties to “regulate

sexually oriented performances as the municipality or county considers

necessary to promote the public health, safety, or welfare.” Tex. Loc.

Gov’t Code Ann. § 243.0031(b). In exercising this power, municipalities

_____________________

2

When interpreting undefined terms in state statutes, the Supreme Court of Texas

“presume[s] that the Legislature uses statutory language with complete knowledge of the

existing law and with reference to it.” Amazon.com, Inc. v. McMillan, 625 S.W.3d 101, 106–

07 (Tex. 2021) (cleaned up). “Prurient interest in sex” is a term of art coined by the United

States Supreme Court as one part of the “obscenity” definition. See Roth v. United States,

354 U.S. 476, 487 (1957) (“Obscene material is material which deals with sex in a manner

appealing to prurient interest.”); Miller v. California, 413 U.S. 15, 24 (1973) (building on

Roth to clarify three-part test for obscene material, including “appeal[s] to the prurient

interest in sex” as one element). We conclude the Texas Legislature invoked the Supreme

Court’s description of a “prurient interest in sex” by using this phrase, and that

jurisprudence guides what conduct is arguably proscribed by S.B. 12. See infra Section II.A

(explaining injury-in-fact analysis for Article III standing in pre-enforcement First

Amendment challenges).

3

Case: 23-20480 Document: 286-1 Page: 4 Date Filed: 11/06/2025

No. 23-20480

and counties may not authorize a sexually oriented performance on public

property or in the presence of individuals under the age of 18. Id. §

243.0031(c). Montgomery County, Taylor County, and the City of Abilene

are the appellants to which Section Two confers authority.

Section Three establishes a Class A misdemeanor for engaging in a

sexually oriented performance either (1) “on public property at a time, in a

place, and in a manner that could reasonably be expected to be viewed by a

child”; or (2) “in the presence of an individual younger than 18 years of age.”

Tex. Penal Code Ann. § 43.28(b). In Texas, district and county

attorneys enforce state criminal laws. See State v. Stephens, 663 S.W.3d 45,

49–51 (Tex. Crim. App. 2021). Two appellants are authorized to enforce

Section Three in their respective jurisdictions: Brett Ligon, the district

attorney for Montgomery County; and James Hicks, the district attorney for

Taylor County.

II.

A.

S.B. 12 has not been enforced yet. The plaintiffs—The Woodlands

Pride, Inc.; Abilene Pride Alliance; 360 Queen Entertainment, LLC;

Extragrams LLC; and Brigitte Bandit—brought a pre-enforcement challenge

under 42 U.S.C. § 1983, alleging that the law facially violates the First and

Fourteenth Amendments. The district court held a two-day bench trial,

concluded that S.B. 12 is a facially unconstitutional restriction on speech, and

enjoined the Attorney General of Texas, the City of Abilene, Taylor County,

Montgomery County, and four district attorneys from enforcing it. See

Woodlands Pride, Inc. v. Paxton, 694 F. Supp. 3d 820, 851 (S.D. Tex. 2023).

4

Case: 23-20480 Document: 286-1 Page: 5 Date Filed: 11/06/2025

No. 23-20480

The appellants ask us to vacate the injunction. 3 Their first argument on

appeal is that the plaintiffs lack standing. We review a district court’s ruling

on standing de novo. Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 215

(5th Cir. 2023).

Standing “is not dispensed in gross.” TransUnion LLC v. Ramirez,

594 U.S. 413, 431 (2021). Plaintiffs “must demonstrate standing for each

claim that they press against each defendant, and for each form of relief that they

seek.” Murthy v. Missouri, 603 U.S. 43, 61 (2024) (emphasis added)

(quotation marks and citation omitted). When plaintiffs seek injunctive relief,

“for every defendant, there must be at least one plaintiff with standing to seek

[the] injunction.” Id. So for each appellant here, at least one plaintiff must

have “(1) an ‘injury in fact’ that is ‘concrete and particularized’ and ‘actual

or imminent’; (2) is fairly traceable to th[at] defendant’s actions; and (3) is

likely to be redressed by a favorable decision.” Turtle Island Foods, 65 F.4th

at 215 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

In pre-enforcement free speech challenges, a plaintiff “need not have

experienced ‘an actual arrest, prosecution, or other enforcement action’ to

establish standing.” Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir.

2021) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).

Chilled speech or self-censorship is an injury in fact if a plaintiff shows that

(1) he intends to engage in a course of conduct arguably affected with a

constitutional interest; (2) the course of action is arguably proscribed by

statute; and (3) there is a credible threat of prosecution under the statute.

_____________________

3

Two defendants at the district court—Travis County district attorney, Delia

Garza, and Bexar County district attorney, Joe D. Gonzalez—did not appeal the district

court’s injunction.

5

Case: 23-20480 Document: 286-1 Page: 6 Date Filed: 11/06/2025

No. 23-20480

Turtle Island Foods, 65 F.4th at 215–16 (citing Susan B. Anthony List, 573 U.S.

at 159).

A plaintiff “must support each element of standing ‘with the manner

and degree of evidence required at the successive stages of the litigation.’”

Murthy, 603 U.S. at 58 (quoting Lujan, 504 U.S. at 561). When a case has

proceeded to final judgment, standing “must be supported adequately by the

evidence adduced at trial.” El Paso County v. Trump, 982 F.3d 332, 338 (5th

Cir. 2020) (cleaned up).

B.

We start with whether—and to what extent—each plaintiff has

standing. To make this determination, we rely on the evidence presented at

trial. See id.

1.

The Woodlands Pride, Inc. hosts an annual pride festival in

Montgomery County, Texas. Children attend the festival, which includes on-

stage drag performances. Woodlands Pride often says that its festival is “a

reflection of a family-oriented community.” It “want[s] to make sure” that

this message of “family-oriented community” is “pushed out through [the]

music that’s played, [and] through everything you see,” including “what’s

happening on the stage.” To achieve this objective, a Woodlands Pride board

member approves the music playlists and meets with all performers to “talk

about dos and don’ts.”

When asked by the district court whether the drag performances are

“specifically tailored to a family aspect,” the Woodlands Pride representa-

tive testified: “Our performances aren’t specifically tailored to a family

aspect, but they are tailored to mostly ensuring that there’s no bad language

in music and that it is a festival for everybody.” “For lack of better terms,”

6

Case: 23-20480 Document: 286-1 Page: 7 Date Filed: 11/06/2025

No. 23-20480

the representative testified, “this is a family friendly drag performance.”

And he confirmed that this is true for all Woodlands Pride performances.

The Woodlands Pride representative also testified that he could

“confidently describe to [the drag performers] how to avoid making a

performance appear that it appeals to the prurient interest in sex.” There has

never been any nudity at any of Woodland Pride’s performances, 4 no

exhibition or representation of actual or simulated sexual acts or genitals, and

no sexual gesticulations with exaggerated prosthetic penises. The performers

“do a Conga line type thing and put their hands on each other’s hips,” and

sometimes touch each other—including a “portion of their buttocks”—

while dancing, but the representative testified that it is “just a dance routine”

and does not appeal to the prurient interest in sex. He also testified that some

of the performers may “twerk.”

The Woodlands Pride festival also has vendors, including STI and

STD testing vendors who hand out condoms and sexual lubricant. The

plaintiffs argue that passing out condoms and sexual lubricant is arguably

“the exhibition of a device designed and marketed as useful primarily for the

sexual stimulation of male or female genitals.”

None of the Woodlands Pride conduct introduced at trial arguably

amounts to a “sexually oriented performance.” A vendor handing out

condoms and sexual lubricant is not “a visual performance,” nor are STD

and STI testing vendors “performers.” See Tex. Penal Code Ann. §

_____________________

4

After testifying several times that there is no nudity during the performances,

including as defined by Tex. Bus. & Com. Code Ann. § 102.051(1)(B), the

representative testified on redirect that some performers exhibited nudity as defined by

S.B. 12 because the performers showed cleavage and a portion of their buttocks. Only one

exhibit introduced into evidence at trial depicts a Woodlands Pride drag performer’s outfit.

The performer is wearing what appears to be a long-sleeved leotard with fishnet tights.

7

Case: 23-20480 Document: 286-1 Page: 8 Date Filed: 11/06/2025

No. 23-20480

43.28(a)(2). As to the drag performances, even if making contact with

another performer’s buttocks is arguably “sexual conduct” under S.B. 12, it

is not proscribed if it does not appeal to the prurient interest in sex. None of

the trial evidence indicates that the performances are “in some sense erotic.”

See Ashcroft, 535 U.S. at 579. Because Woodlands Pride does not intend to

engage in conduct that is arguably proscribed by S.B. 12, it does not have

standing to seek an injunction against any of the appellants.

2.

Abilene Pride Alliance is an organization based in Abilene, Texas,

which is in Taylor County. Abilene Pride hosts various community-based and

fundraising events, including drag brunches, drag bingo, and a pride parade

and festival. There is no age restriction for Abilene Pride’s events and

Abilene Pride asks all performers to “[p]lease be age appropriate.”

There is no nudity, as defined by S.B. 12, at Abilene Pride’s drag

performances. Nor is there actual or simulated sex or masturbation. Drag

performers for Abilene Pride’s events wear a variation of sequins, big hair,

wigs, breastplates, hip pads, packers, and exaggerated jewelry. 5 A typical

Abilene Pride drag performance involves “dancing, lip syncing, engaging

with the audience by hugging, kissing on the cheek, [and] sometimes

bumping hips.” A drag performer’s buttocks have “come into contact with

attendees” on a “a few occasions where the venue has been crowded and as

the entertainer was moving to engage with the crowd, they [sic] bumped into

some folks.” Performers also “[o]ccasionally” “do a hip bump with one of

the audience members.” Performers may have sat in audience members’ laps

_____________________

5

Breastplates are prosthetic breasts. Hip pads are prosthetics that exaggerate the

appearance of the performer’s buttocks. Packers are prosthetics that drag performers wear

under clothing to create the appearance of male genitalia.

8

Case: 23-20480 Document: 286-1 Page: 9 Date Filed: 11/06/2025

No. 23-20480

too, but the Abilene Pride president provided conflicting testimony on this. 6

Drag performers’ breasts or breastplates come into contact with attendees

only when giving front-facing hugs or during “accidental bumping.”

Abilene Pride’s president testified that he does not think that Abilene

Pride’s performances involve sexual gestures or gesticulations. He is

nonetheless concerned that others might think that the performances violate

S.B. 12 because Abilene Pride has had protestors at its events before and, on

one occasion, someone called the police. 7 The public health department has

also attended Abilene Pride’s festival to share information and hand out free

condoms and sexual lubricant. As with the Woodlands Pride vendors who

passed out condoms and sexual lubricant, the plaintiffs contend that this is

arguably proscribed by S.B. 12.

None of the Abilene Pride conduct introduced at trial arguably

amounts to a “sexually oriented performance.” First, that people have

protested Abilene Pride’s events before has no bearing on whether S.B. 12

arguably proscribes the performances. Second, giving front facing hugs and

accidentally bumping into others are common interactions that do not

inherently appeal to the prurient interest in sex. Nor does the trial record

contain evidence indicating that under the circumstances described here,

these common interactions are “in some sense erotic.” See Ashcroft, 535 U.S.

at 579. So even if these actions constitute “actual . . . or simulated contact

occurring between one person and the buttocks, breast, or any part of the of

_____________________

6

He testified that drag performers have never sat in the laps of attendees at any of

the events that he has attended. His written declaration, however, stated: “On some

occasions our drag performers give front-facing hugs or hip bumps to audience members or

even sit in their laps.” After the attorney read him this statement on cross-examination, he

testified that performers “usually will just sit and continue lip syncing,” and that he has

never observed lap dances.

7

The police arrived and asked questions but left without taking further action.

9

Case: 23-20480 Document: 286-1 Page: 10 Date Filed: 11/06/2025

No. 23-20480

the genitals of another person,” they are not arguably proscribed by S.B. 12.

Tex. Penal Code Ann. § 43.28(a)(1)(D). And like the STI and STD

testing vendors at Woodlands Pride’s events, handing out condoms and

sexual lubricant is not “a visual performance,” nor is the public health

department a “performer.”

Because Abilene Pride does not intend to engage in conduct that is

arguably proscribed by S.B. 12, it does not have standing to seek an injunction

against any of the appellants.

3.

360 Queen Entertainment, LLC is a drag production company that

books drag queens to perform on the patio of Tomatillos Restaurant & Bar in

San Antonio. Tomatillos is owned by the father of 360 Queen’s owner. The

restaurant is in a strip mall with several other businesses that can view the

patio “very clearly.” 360 Queen and Tomatillos have an agreement that on

show days, 360 Queen “controls” the patio from the morning until the show

ends. Tomatillos provides restaurant service to the audience but is not

otherwise involved. 360 Queen sells the tickets and decides who enters the

show through the patio’s primary entrance. While 360 Queen tries to restrict

restaurant customers from entering the patio via the dining room, it has “had

instances where children have run into the patio through [the] show; not

because they have any interest in watching the drag show itself, but because

there’s a field in the back where a lot of kids tend to go and play while their

parents are dining.”

360 Queen does not typically allow children to attend its shows. This

is not because the shows are “sexual in nature” or “detrimental to children,”

but rather to “create an environment where adults [can] enjoy dinner, enjoy

drinks, enjoy entertainment, but not necessarily have to do it around other

people’s kids.” It makes exceptions to this rule, however. The owner

10

Case: 23-20480 Document: 286-1 Page: 11 Date Filed: 11/06/2025

No. 23-20480

testified: “There have been situations where there are families dining inside

and they have children with them . . . these families are very well aware of

what drag is. And they have pleaded with us to allow them to come out onto

the patio. And we have made exceptions in the past and allowed children to

observe our drag show.”

A picture introduced at trial depicts a 360 Queen drag performer who

is fully clothed in a red dress and holding dollar bills. A different picture

shows a 360 Queen drag performer who is wearing what appears to be a

leotard. The 360 Queen owner described this outfit as “a very short leotard”

and explained that the performer is “wearing butt pads that reveal her

buttocks.” Both images also demonstrate how the public can easily view the

patio.

360 Queen performances include twerking—“a form of expression

where you put your hands on your knees essentially and move your buttocks

up and down rapidly”—and “death drops”—a dance move “where a

performer will tuck one of their [sic] feet or legs behind their [sic] butt and

then fall to the floor with the other leg extended.” When asked whether the

performers “simulate contact with the buttocks of another person,” the

owner testified that the performers sit on customers’ laps while wearing

thongs and one performer invited a “handsome” male customer “to spank

her on the butt.” When asked whether the performers “ever perform

gesticulations while wearing prosthetics,” the owner testified that in 360

Queen’s most recent show, a drag queen “wore a breastplate that was very

revealing, pulsed her chest in front of people, [and] put her chest in front of

people’s faces.”

As to whether 360 Queen performances include nudity, the owner

testified that a performer once had a wardrobe malfunction where a

11

Case: 23-20480 Document: 286-1 Page: 12 Date Filed: 11/06/2025

No. 23-20480

breastplate fell out and that some performers “wear sort of string bikinis that

will cover the nipples but be very, very revealing around the buttocks.”

Based on the evidence introduced at trial, 360 Queen’s performances

arguably include proscribed conduct. The owner described one performance

where a drag queen, who was wearing a “very revealing” breastplate pulsed

the breastplate in front of people and put the breastplate in people’s faces.

This arguably constitutes “the exhibition of sexual gesticulations using . . .

prosthetics that exaggerate . . . female sexual characteristics.” See Tex.

Penal Code Ann. § 43.28(a)(1)(E). He also described a second

performance where an audience member was invited to spank a performer’s

buttocks. This arguably constitutes “actual contact or simulated contact

occurring between one person and the buttocks . . . of another person.” Id. §

43.28(a)(1)(D). Both performances are arguably “in some sense erotic,” see

Ashcroft, 535 U.S. at 579, and the owner testified that minors are sometimes

present.

Because 360 Queen only holds performances in San Antonio, its

claimed injury is not traceable to Abilene, Taylor County, Montgomery

County, or the district attorney appellants. The Attorney General is the only

appellant who 360 Queen could have standing to assert its claims against.

Recall that the Attorney General enforces Section One, which prohibits a

“person who controls the premises of a commercial enterprise” from

“allow[ing] a sexually oriented performance to be presented on the premises

in the presence of an individual younger than 18 years of age.” Tex.

Health & Safety Code Ann. § 769.002(a) (emphasis added).

The Attorney General argues that 360 Queen does not “control” the

premises because a third party owns Tomatillos. Control is not necessarily

synonymous with ownership, however. See Control, Black’s Law

Dictionary (11th ed. 2019) (defining “Control” as, inter alia, “[t]o

12

Case: 23-20480 Document: 286-1 Page: 13 Date Filed: 11/06/2025

No. 23-20480

exercise power or influence over”). Again, for a pre-enforcement First

Amendment challenge, the question is whether a plaintiff’s conduct is

arguably proscribed by the statute. Turtle Island Foods, 65 F.4th at 215–16.

“Arguably proscribed” does not require that the plaintiff’s interpretation of

the challenged law be the best interpretation. Id. at 218. The owner of 360

Queen testified that 360 Queen controls the patio on show days, sells the

tickets, and decides who enters the show through the patio’s primary

entrance. Put otherwise, 360 Queen “exercise[s] power or influence” over

the premises. See supra Black’s Law Dictionary. That is sufficient

for this posture. 8

Our determination that 360 Queen seeks to engage in arguably

proscribed conduct does not conclude the standing inquiry. It does not even

conclude the injury-in-fact inquiry. To satisfy the injury-in-fact requirement,

the conduct must be arguably affected with a constitutional interest and there

must be a credible threat of enforcement. Turtle Island Foods, 65 F.4th at 215–

16. If an injury in fact is established, it must also be traceable to the Attorney

General and redressable by the injunction sought. Id. at 215. “In pre-

enforcement First Amendment challenges like this one, we assume a credible

threat of prosecution in the absence of compelling contrary evidence, so long

_____________________

8

In a footnote, the Attorney General asserts this same position—that 360 Queen

does not “control” Tomatillos—to argue that 360 Queen’s claims against him run afoul of

sovereign immunity. He correctly states that for Ex parte Young to apply, the defendant-

official “must have ‘some connection with the enforcement of the [challenged] act.’” Tex.

All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th Cir. 2022) (emphasis in original)

(quoting Ex parte Young, 209 U.S. 123, 157 (1908)). But the Attorney General has more

than some connection with the enforcement of Section One. He has the sole authority to (1)

recover civil penalties for Section One violations and (2) obtain injunctions to restrain

Section One violations. See Tex. Health & Safety Code Ann. § 769.002(c). He

therefore has the “particular duty” to enforce—that is, to compel or constrain compliance

with—Section One, so the injunction 360 Queen seeks would prevent the purported

constitutional violation that 360 Queen fears. See Tex. All. for Retired Ams., 28 F.4th at 672.

13

Case: 23-20480 Document: 286-1 Page: 14 Date Filed: 11/06/2025

No. 23-20480

as the challenged law is non-moribund.” Inst. for Free Speech v. Johnson, 148

F.4th 318, 329 (5th Cir. 2025) (cleaned up).

Although it “falls only within the outer ambit of the First

Amendment’s protection” and is subject to restrictions, Tex. Ent. Ass’n, Inc.

v. Hegar, 10 F.4th 495, 509 (5th Cir. 2021) (quoting City of Erie v. Pap’s A.M.,

529 U.S. 277, 289 (2000)), nude dancing generally constitutes expressive

conduct, id. (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991)).

360 Queen’s performances are therefore arguably affected with a constitu-

tional interest. 9 We also assume a credible threat of enforcement, given the

lack of evidence demonstrating otherwise and because S.B. 12 is non-

moribund. See Inst. for Free Speech, 148 F.4th at 329. 360 Queen has

established an injury in fact.

Traceability and redressability are the final hurdles for standing. 360

Queen satisfies these “dual elements” if its claimed injury is “fairly traceable

to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court” and it is “likely,

as opposed to merely speculative, that the injury will be redressed by a

_____________________

9

We have genuine doubt, however, that pulsing prosthetic breasts in front of

people, putting prosthetic breasts in people’s faces, and being spanked by audience

members are actually constitutionally protected—especially in the presence of minors.

While nude dancing receives some constitutional protection, “intentional contact between

a nude dancer and a bar patron is conduct beyond the expressive scope of the dancing itself.

The conduct at that point has overwhelmed any expressive strains it may contain. That the

physical contact occurs while in the course of protected activity does not bring it within the

scope of the First Amendment.” Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th

Cir. 1995). “It is possible to find some kernel of expression in almost every activity a person

undertakes . . . but such a kernel is not sufficient to bring the activity within the protection

of the First Amendment.” Id. (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989)).

Even though the performers here are not fully nude, Hang On’s reasoning is persuasive. At

a minimum, Hang On confirms that each action in a performance is not necessarily

protected even if the performance as a whole may receive some constitutional protection.

14

Case: 23-20480 Document: 286-1 Page: 15 Date Filed: 11/06/2025

No. 23-20480

favorable decision.” Id. at 330 (cleaned up); see also Lujan, 504 U.S. at 560–

61.

360 Queen’s claimed injury is traceable to the Attorney General, who

enforces Section One, and its desired injunction would eliminate the threat

of enforcement. See supra note 8; see also Air Evac EMS, Inc. v. Tex., Dep’t of

Ins., Div. of Workers’ Comp., 851 F.3d 507, 513–14 (5th Cir. 2017) (noting

“significant overlap” between the redressability and traceability inquiries

and Ex parte Young’s application). 360 Queen therefore has standing to seek

an injunction against the Attorney General. Because one plaintiff with

standing for a given defendant is sufficient, we need not determine whether

the remaining two plaintiffs have standing to seek an injunction against the

Attorney General. See Murthy, 603 U.S. at 61.

4.

Extragrams LLC is a drag telegram company that provides drag

entertainment for celebrations, events, and parties, and hosts drag bingo.

Extragrams’ performances are primarily in Austin, Texas but it has also

performed in San Antonio, Dallas, Houston, Fredericksburg, Round Rock,

and Pflugerville.

This list does not include Abilene. Nor are any of these cities located

in Taylor or Montgomery County. Because Extragrams does not seek to

engage in arguably proscribed conduct in Abilene, Taylor County, or

Montgomery County, its claimed injury is not traceable to these appellants

or the district attorney appellants. Accordingly, Extragrams does not have

standing to seek an injunction against the remaining appellants.

5.

The final plaintiff, Brigitte Bandit, is a drag performer who lives in

15

Case: 23-20480 Document: 286-1 Page: 16 Date Filed: 11/06/2025

No. 23-20480

Austin, Texas, which is in Travis County. 10 Most of her performances are in

Travis County but she has performed in Houston, San Marcos, San Antonio,

and Dallas. As of September 9, 2023, Bandit had performances scheduled in

Denton and Abilene.

Bandit typically performs in bars and nightclubs that are restricted to

ages 21+, but she also performs at drag brunches (that are sometimes

restricted to ages 21+ and sometimes open to all ages) and at “all-ages shows

like drag story time.” Most of Bandit’s performances are not sexual, but she

does have “some sexual shows.” She testified that she would not perform

one of her sexual shows at an all-ages event, however.

Bandit changes her performance and appearance depending on the

audience. When performing for children, she “want[s] to appeal to

something that would be interesting to kids.” She has dressed as characters

from Toy Story and The Little Mermaid, and “like a big pink princess.” She

testified that, when performing before kids, her costumes are “typically

pretty covered,” presumably meaning modest.

Bandit does not have standing to seek an injunction against the

remaining appellants. Bandit has not performed, nor expressed an intent to

perform, in Montgomery County, so her claimed injury is not traceable to

Montgomery County or its district attorney. While Bandit testified that she

had a performance scheduled in Abilene, her testimony did not include any

information about this performance. Nor does the plaintiffs’ brief reference

Bandit’s intent to perform in Abilene. Bandit’s testimony stressed that her

_____________________

10

The district court granted this plaintiff permission to proceed under the

pseudonym “Brigitte Bandit.” See Woodlands Pride, 694 F. Supp. 3d at 829 n.3. “Bandit”

is a drag character who dresses as a female. Because the actual gender of this plaintiff is not

disclosed in the record, and “Bandit” portrays a female character, we refer to the character

“Bandit” as a female.

16

Case: 23-20480 Document: 286-1 Page: 17 Date Filed: 11/06/2025

No. 23-20480

sexual performances are restricted to 18+ or 21+ audiences, and no evidence

indicates that an Abilene performance would be any different. Bandit’s

claimed injury therefore is not traceable to the City of Abilene, Taylor

County, or the Taylor County district attorney either.

III.

Because the plaintiffs only have standing to assert their claims against

the Attorney General, and the Attorney General only has the authority to

enforce Section One, the sole remaining issue on appeal is whether the

plaintiffs have established that Section One, on its face, violates the First

Amendment.

The choice to litigate a facial challenge “comes at a cost”: facial chal-

lenges are “hard to win.” Moody v. NetChoice, LLC, 603 U.S. 707, 723

(2024). But this is a feature, not a bug. “Claims of facial invalidity often rest

on speculation about the law’s coverage and its future enforcement.” Id.

(internal quotation marks and citation omitted). Such claims also “threaten

to short circuit the democratic process by preventing duly enacted laws from

being implemented in constitutional ways.” Id. (internal quotation marks and

citation omitted). The Moody framework for facial free speech challenges

safeguards the democratic will and states’ interests while still “provid[ing]

breathing room for free expression.” Id. (cleaned up).

To determine if a law, on its face, violates the Free Speech Clause of

the First Amendment, we must ask whether “a substantial number of the

law’s applications are unconstitutional, judged in relation to the statute’s

plainly legitimate sweep.” Id. (alterations adopted) (quoting Ams. for

Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)). This inquiry begins with

an assessment of the law’s scope: “What activities, by what actors,” does the

law “prohibit or otherwise regulate?” Id. at 724. We then determine which

of the law’s applications violate the First Amendment. Id. at 725. And finally,

17

Case: 23-20480 Document: 286-1 Page: 18 Date Filed: 11/06/2025

No. 23-20480

we take the unconstitutional applications and “measure them against the

rest.” Id. The law is not facially invalid unless its “unconstitutional

applications substantially outweigh its constitutional ones.” Id. at 724.

The district court did not conduct this analysis, nor did the parties

brief the proper standard or adequately develop the record. 11 Consequently,

we are unequipped to undertake this task in the first instance, and remand for

the district court to do so. See Ficher v. Bickham, 70 F.4th 257, 260 (5th Cir.

2023) (“[W]e are a court of review, not first view.”).

* * *

We VACATE the injunction against the appellants and REMAND.

On remand, the district court is instructed to (1) dismiss the claims against

Brett Ligon, James Hicks, Montgomery County, Taylor County, and the City

of Abilene; and (2) reconsider the plaintiffs’ facial challenge to Section One

of S.B. 12 under the Moody framework. The pending motion for stay pending

appeal is denied as moot.

_____________________

11

To be fair, the Supreme Court decided Moody after the parties briefed this appeal,

and the Attorney General promptly filed a Rule 28(j) letter to notify us of its relevance. And

while Moody espoused existing law, that existing law had frequently been overlooked. See

Moody, 603 U.S. at 743–45 (vacating judgments from this court and the Eleventh Circuit

because neither court applied the proper standard for facial free speech challenges).

18

Case: 23-20480 Document: 286-1 Page: 19 Date Filed: 11/06/2025

No. 23-20480

James L. Dennis, Circuit Judge, concurring in the judgment in part and

dissenting in part:

I concur in the judgment that (1) 360 Queen has standing to sue the

Attorney General; (2) Woodlands Pride and Abilene Pride lack standing to

sue Montgomery and Taylor Counties and the claims against those

Defendants should be dismissed without prejudice; (3) sovereign immunity

does not bar Plaintiffs’ claims against the Attorney General; and (4) remand

is appropriate for the district court to reconsider Plaintiffs’ facial challenge

under Moody v. NetChoice, LLC, 603 U.S. 707 (2024). But in concluding that

all other Plaintiffs do not intend to engage in conduct arguably proscribed by

Senate Bill 12, the majority misapprehends the governing pre-enforcement

standing principles, disregards unrebutted testimony and record evidence,

and turns a blind eye to the Texas Legislature’s avowed purpose: a statewide

“drag ban.” In place of meaningful review, the opinion offers a strained and

wooden account of injury and traceability that ignores the statute’s text and

the practical realities of its enforcement. Worse still, the majority intimates

in passing that it harbors “genuine doubt” whether Plaintiffs’ drag

performances are protected First Amendment expression. That gratuitous

dictum runs headlong into settled First Amendment jurisprudence and

threatens to mislead on remand. Accordingly, I concur in the judgment in

part and dissent in part.

I

S.B. 12 traces its origins to late 2022, when Texas lawmakers

expressed outrage over reports of a private “drag” 1 performance at a Plano,

_____________________

1

“Drag” is a theatrical performance in which a performer overdramatizes a

character or gender. The performer typically dresses as a celebrity or fictional persona—

often, though not always, of the opposite sex or gender—and uses costumes, wigs, makeup,

and other accessories to exaggerate their physical characteristics. These accessories may

19

Case: 23-20480 Document: 286-1 Page: 20 Date Filed: 11/06/2025

No. 23-20480

Texas restaurant with minors among the audience. Shortly thereafter,

Lieutenant Governor Dan Patrick identified S.B. 12 as a legislative priority,

characterizing it as a measure to prohibit children’s exposure to drag shows.

When Senator Bryan Hughes introduced S.B. 12 in March 2023, he

described it as prohibiting “sexually explicit performances like drag shows.”

Following swift legislative approval, both Governor Greg Abbott and

Lieutenant Governor Patrick publicly celebrated the law as a ban on drag

performances in public spaces and in the presence of minors.

S.B. 12 prohibits “sexually oriented performance[s]” from occurring

in the “presence of an individual younger than 18 years of age” through three

main enforcement mechanisms: (1) civil penalties on those who control

commercial enterprises; (2) authorization for counties and municipalities to

regulate and prohibit such performances; and (3) criminal penalties. These

substantive provisions of S.B. 12 appear across three sections.

Section One establishes a civil penalty for any person who “controls a

premises of a commercial enterprise” that “allow[s] a sexually oriented

performance to be presented on the premises in the presence of an individual

younger than 18 years of age.” Tex. Health & Safety Code

§ 769.002(a). Section One is enforced by the Texas Attorney General who

may bring an action to recover a civil penalty of up to $10,000 for each

violation and obtain a temporary or permanent injunction to restrain

violations. Id. § 769.002(b)–(c).

_____________________

include prosthetics worn under their clothing, such as “packers” to simulate male anatomy

or “breastplates” to appear female. Performances often incorporate singing, dancing,

comedy, and physical interactions with audience members. Drag shows are held in a variety

of settings, including weddings, corporate events, holiday parties, and birthday

celebrations.

20

Case: 23-20480 Document: 286-1 Page: 21 Date Filed: 11/06/2025

No. 23-20480

Section Two prohibits Texas municipalities and counties from

authorizing sexually oriented performances on either (1) public property, or

(2) in the presence of an individual younger than 18 years of age. Tex. Loc.

Gov’t Code § 243.0031(c). A municipality or county may, subject to the

above prohibition, regulate sexually oriented performances as the

municipality or county deems necessary to promote the public health, safety,

or welfare. Id. § 243.0031(b). Municipalities and counties retain broad

authority to license, tax, suppress, prevent, or otherwise regulate theatrical

or other exhibitions, shows, or amusements. Id. § 243.0031(d)

Section Three creates a criminal offense for engaging in a sexually

oriented performance, regardless of whether compensation is expected or

received, if the performance (1) occurs on public property at a time, in a

place, and in a manner that could reasonably be expected to be viewed by a

child, or (2) takes place in the presence of an individual younger than 18 years

of age. Tex. Penal Code § 43.28(b). A violation constitutes a Class A

misdemeanor that is punishable by up to one year in jail, a fine of up to

$4,000, or both. Id. §§ 43.28(c), 12.21.

Section Three defines “sexually oriented performance” used across

S.B. 12’s substantive provisions as a “visual performance” that (A) features

(i) a performer who is “nude” or (ii) a performer who engages in “sexual

conduct,” and that (B) “appeals to the prurient interest in sex.” Id.

§ 43.28(a)(2). The definition of “nude” is borrowed from § 102.051(1)(A)–

(B) of the Texas Business and Commerce Code to mean either (A) “entirely

unclothed” or (B) “clothed in a manner that leaves uncovered or visible

through less than fully opaque clothing any portion of the breasts below the

top of the areola of the breasts, if the person is female, or any portion of the

genitals or buttocks.”

21

Case: 23-20480 Document: 286-1 Page: 22 Date Filed: 11/06/2025

No. 23-20480

Section Three then defines five categories of “sexual conduct” to

include:

(A) The exhibition or representation, actual or simulated, of

sexual acts, including vaginal sex, anal sex, and

masturbation;

(B) The exhibition or representation, actual or simulated, of

male or female genitals in a lewd state, including a state of

sexual stimulation or arousal;

(C) The exhibition of a device designed and marketed as useful

primarily for the sexual stimulation of male or female

genitals;

(D) Actual contact or simulated contact occurring between

one person and the buttocks, breast, or any part of the

genitals of another person; or

(E) The exhibition of sexual gesticulations using accessories or

prosthetics that exaggerate male or female sexual

characteristics.

Id. § 43.28(a)(1)(A)–(E). Several words and phrases are left undefined by

S.B. 12 and Texas law. For example, no Texas law defines, inter alia,

“lewd,” “performer,” “visual performance,” or “prurient interest in sex.”

See, e.g., id. § 43.28(a)(1)–(2).

B

Shortly before S.B. 12 took effect, Plaintiffs brought a pre-

enforcement challenge through 42 U.S.C. § 1983 alleging the law facially

violated the First and Fourteenth Amendments and seeking declaratory and

injunctive relief. Plaintiffs are Brigitte Bandit, 360 Queen Entertainment

LLC, Extragrams, LLC, The Woodlands Pride, Inc., and Abilene Pride

Alliance.

22

Case: 23-20480 Document: 286-1 Page: 23 Date Filed: 11/06/2025

No. 23-20480

Brigitte Bandit, a pseudonym, resides in Travis County, Texas where

she hosts, produces, and performs in drag shows as a full-time profession.

Bandit performs in a variety of venues including restaurants, bars, private

residences, and public parks. 360 Queen Entertainment LLC is a drag

production company in Bexar County, Texas owned by Richard Montez, Jr.

360 Queen produces drag performances exclusively for a restaurant in San

Antonio, Texas owned by Montez’s father. Extragrams, LLC is a drag

production and entertainment company in Travis County that offers drag

entertainment for various events including bingo, parties, weddings, and

corporate and holiday events. The Woodlands Pride, Inc. is a nonprofit

LGBTQ+ community organization in The Woodlands Township in

Montgomery County, Texas. Woodlands Pride organizes a free yearly

festival in a Montgomery County public park, which includes drag

performances, and is attended by thousands of patrons and hundreds of

exhibitors to support and highlight the LGBTQ+ community. Abilene Pride

Alliance is also a nonprofit LGBTQ+ organization in the City of Abilene in

Taylor County, Texas. Abilene Pride provides meeting spaces for social

support groups and holds community-based and fundraising events. These

events occur on public and private property and often feature drag

performers.

Each Plaintiff sued Kenneth Warren Paxton in his official capacity as

the Attorney General for the State of Texas, but named different cities,

counties, or district attorneys also as defendants. Bandit and Extragrams

asserted claims against Travis County District Attorney Delia Garza; 360

Queen asserted claims against Bexar County District Attorney Joe D.

Gonzales; Woodlands Pride asserted claims against The Woodlands

Township, Montgomery County, and Montgomery County District

Attorney Brett Ligon; and Abilene Pride asserted claims against the City of

Abilene, Taylor County, and Taylor County District Attorney James Hicks.

23

Case: 23-20480 Document: 286-1 Page: 24 Date Filed: 11/06/2025

No. 23-20480

Following a two-day bench trial, the district court entered a

permanent injunction against S.B. 12’s enforcement, concluding that

Plaintiffs had standing to seek injunctive relief against each Defendant and

that the law facially violates the First Amendment. This appeal followed. 2

II

“Article III standing requires a plaintiff to show: (1) an injury in fact

(2) that is fairly traceable to the actions of the defendant and (3) that likely

will be redressed by a favorable decision.” Cibolo Waste, Inc. v. City of San

Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (quotations and citation omitted).

In the majority’s view, Plaintiffs’ claims—save for 360 Queen’s against the

Attorney General—meet their end at Article III’s injury-in-fact prong. That

result rests on a cramped view of pre-enforcement injury, a selective view of

the record, and an unduly narrow construction of S.B. 12’s sweeping text

and enforcement scheme.

A

In the context of a pre-enforcement First Amendment challenge, the

chilling of speech—whether by self-censorship or the reasonable fear of

official sanction—constitutes an injury sufficient to confer Article III

standing. Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 215 (5th Cir.

2023) (quoting Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir. 2021)).

A plaintiff alleging such an injury must demonstrate (1) an intention to engage

in conduct that is arguably protected by the Constitution, (2) that the conduct

is at least arguably proscribed by the challenged statute, and (3) that there

exists a credible threat of prosecution under that statute. Id. at 215–16 (citing

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)). We must assume

_____________________

2

Travis County District Attorney Delia Garza and Bexar County District Attorney

Joe D. Gonzales did not appeal.

24

Case: 23-20480 Document: 286-1 Page: 25 Date Filed: 11/06/2025

No. 23-20480

at this stage of the analysis that the conduct at issue—Plaintiffs’ drag

performances—falls within the ambit of protected First Amendment

expression. Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 309

(5th Cir. 2023). So, this dispute concerns the second and third elements.

1. Arguably Proscribed

To satisfy the arguably proscribed standard, Plaintiffs need only show

that their interpretation of S.B. 12 is “arguable,” not that it is “the best

interpretation” of the statutory text. Turtle Island Foods, 65 F.4th at 218

(emphasis in original). Contrary to the majority’s conclusion, Plaintiffs have

shown that their drag performances arguably fall within S.B. 12’s definition

of “sexually oriented performance”—i.e., a visual performance that features

either nudity or at least one of five categories of “sexual conduct” that

“appeal[s] to the prurient interest in sex”—and those performances will

arguably occur in the presence of minors. Tex. Penal Code

§ 43.28(a)(2).

I begin with what the majority ignores: S.B. 12’s legislative history.

While S.B. 12 does not on its face purport to ban “drag performances” by

name, even a cursory review of the law’s legislative history reveals several

indicia that this was undoubtedly the legislature’s intent. 3 Consider what

prompted lawmakers to introduce S.B. 12: a private drag performance in

Plano, Texas, during which a performer allegedly lifted her skirt and danced

_____________________

3

Legislative history is a valid inquiry for the purposes of standing. See United States

v. One Parcel of Real Prop., 831 F.2d 566, 567 (5th Cir. 1987) (relying on legislative history

to determine statute’s scope for purposes of standing). And Texas law permits courts to

“consider legislative history in construing a statute” even where that statute “is not

ambiguous.” City of Rockwall v. Hughes, 246 S.W.3d 621, 626 n.6 (Tex. 2008) (citing Tex

Gov’t Code § 311.023(3)).

25

Case: 23-20480 Document: 286-1 Page: 26 Date Filed: 11/06/2025

No. 23-20480

suggestively before an audience that included minors. 4 Senator Hughes, the

bill’s author, cited this isolated anecdote to justify a sweeping legislative

conclusion, namely that “sexually oriented performances sometimes occur

in venues generally accessible to the public, including children.” 5

From this premise, state officials characterized S.B. 12 as a targeted

response to drag performances. Lieutenant Governor Patrick designated the

legislation a priority and avowed its express purpose as “Banning Children’s

Exposure to Drag Shows.” In presenting the bill to the State Affairs

Committee, Senator Hughes likewise warned of a perceived risk that children

were being exposed to “sexually explicit performances like drag shows.”

S.B. 12’s legislative sponsors in the Texas House of Representatives

promoted the statute as a means of “protecting children from explicit, hyper-

sexualized drag performances in Texas,” “restricting sexually oriented

performances also known as ‘drag shows’ in the presence of children,” and

“protect[ing] a child’s innocence” by banning such events. Governor Abbott

affirmed this understanding when he announced the bill’s signing: “Texas

Governor Signs Law Banning Drag Performances in Public. That’s right.”

The legislative record leaves little doubt that S.B. 12 was crafted with the

specific aim of restricting drag performances.

_____________________

4

Bryan Hughes, Bill Analysis: C.S.S.B. 12, 88th Leg., R.S., at 1

(2023), https://capitol.texas.gov/tlodocs/88R/analysis/pdf/SB00012H.pdf [https://per-

ma.cc/CSR4-MLVU]; Mark Lungariello, Video of Drag Queen Gyrating in Front of Child

has Texas Pols Pushing for Legislative Action, N.Y. Post (Oct. 18, 2022),

https://nypost.com/2022/10/18/video-of-drag-queen-gyrating-next-to-child-sparks-bac-

klash/ [https://perma.cc/D2R2-9P8Z].

5

Hughes, supra note 4 (“In cities around Texas, sexually oriented performances

sometimes occur in venues generally accessible to the public, including children. For

instance, on October 18, 2022, the New York Post reported an all ages lunch at the Ebb &

Flow restaurant in Plano, Texas.”).

26

Case: 23-20480 Document: 286-1 Page: 27 Date Filed: 11/06/2025

No. 23-20480

So, it should come as no surprise that the statute’s operative language

“arguably” reaches the very conduct lawmakers intended to stymie. To

begin, extensive trial testimony demonstrates that each Plaintiff either

engages in or produces performances that arguably fall within the statute’s

definition of “sexual conduct” or nudity. Bandit described the use of

elaborate costuming in her performances, including corsets, high heels, wigs,

prosthetic breastplates, false eyelashes, and makeup. In her words, these

features are intended to “exaggerate” her “female characteristics” and are

integral to her expressive presentation. Bandit regularly incorporates into her

performances choreography that includes hip thrusts, breast touching, and

stylized body contact with audience members—for instance, the widely

accepted custom of having audience members place tips into her prosthetic

chest. Her use of prosthetics and sexually suggestive bodily movements

arguably implicates the statutory prohibition against “the exhibition of sexual

gesticulations using accessories or prosthetics that exaggerate male or female

sexual characteristics.” Tex. Penal Code § 43.28(a)(1)(E).

Representatives of 360 Queen and Extragrams offered similar

testimony. Both entities produce drag performances in which artists

frequently wear prosthetic breastplates, padded undergarments, and packers

to simulate or accentuate secondary sex characteristics. While wearing these

accessories, performers engage in highly stylized dance routines that involve

twerking, 6 body rolls, splits, and other gestures that one 360 Queen

representative described as “pulsing [their] chest in front of people’s faces.”

These expressive elements—when viewed in combination—arguably fall

within the statute’s prohibition on gesticulations that utilize prosthetics to

_____________________

6

Twerking, Merriam-Webster, https://perma.cc/W2S7-SKQD (defining

“twerking” as “sexually suggestive dancing characterized by rapid, repeated hip thrusts

and shaking of the buttocks especially while squatting”).

27

Case: 23-20480 Document: 286-1 Page: 28 Date Filed: 11/06/2025

No. 23-20480

exaggerate sexual characteristics. Tex. Penal Code § 43.28(a)(1)(E).

Extragrams’s director also reported that wardrobe malfunctions “happen[]

often” during performances, such as the accidental exposure of cleavage or

buttocks during energetic choreography (e.g., jumping into a split or leotards

riding up), which arguably constitutes nudity. 7 Id. § 43.28(a)(2)(A)(i); Tex.

Bus. & Com. Code § 102.051(1)(B).

The same is true of drag performances hosted by Woodlands Pride

and Abilene Pride. The president of Woodlands Pride testified that

performers at its annual outdoor festival routinely appear in gendered attire

including wigs, stylized makeup, and prosthetic breastplates. Their

choreography often includes movements such as hip thrusts, body rolls, and

other exaggerated gestures that accentuate sex characteristics. Abilene

Pride’s representatives offered similar testimony. At its events, drag

performers often wear packers or breastplates and padded undergarments to

shape or accentuate the appearance of sexual characteristics. These

performers also engage in stylized choreography that, in the view of the

organization’s director, may at times carry sexual overtones or be perceived

as suggestive by members of the public. When viewed in context, the

combination of simulated anatomy, expressive movement, and costuming

arguably amount to “the exhibition of sexual gesticulations using accessories

_____________________

7

The Attorney General conceded at trial that such wardrobe malfunctions would

expose Extragrams, Woodlands Pride, and Abilene Pride to liability under S.B. 12. See

Trial Tr. Day 2, ECF-78, 80:18-81:5 (“[O]ne of the responses to that was ‘Well, one of our

performers might have a wardrobe malfunction.’ I don’t really understand what they think

that gets them. . . . If they’re wearing a costume that might result in exposure of their private

parts, they should not be performing in front of children wearing that costume. You can’t

just recklessly wear something that might expose yourself and then have a get out of jail

free card and say, ‘Oh, it was a wardrobe malfunction.’”).

28

Case: 23-20480 Document: 286-1 Page: 29 Date Filed: 11/06/2025

No. 23-20480

or prosthetics that exaggerate male or female sexual characteristics.” Tex.

Penal Code § 43.28(a)(1)(E).

Plaintiffs also have demonstrated that their performances arguably

satisfy the second component of a “sexually oriented performance” under

S.B. 12: that the conduct “appeal[s] to the prurient interest in sex.” Id.

§ 43.28(a)(2)(B). The statute itself offers no definition of this phrase, which

the Attorney General concedes. 8 He and the majority instead turn to

obscenity jurisprudence, invoking language from Roth v. United States, 354

U.S. 476, 487 & n.20 (1957), and Ashcroft v. ACLU, 535 U.S. 564, 579 (2002),

to suggest that the standard is satisfied by material that is “in some sense

erotic” or has a “tendency to excite lustful thoughts.” See ante, at 3 & n.2.

Even accepting that construction for present purposes, common sense

and the record demonstrate that Plaintiffs’ performances arguably meet the

standard. S.B. 12’s statutory framework remains notably open-ended; the

law does not require proof of specific intent to arouse, nor does it identify any

objective criteria for who determines whether a performance is erotic or how

that judgment is to be made. In that interpretive vacuum, it is easy to see how

“sexual conduct”—here, Plaintiffs’ performances involving simulated or

exaggerated sexual characteristics combined with stylized or suggestive

physical gestures—is arguably “in some sense erotic” or has the potential to

“excite lustful thoughts.” Roth, 354 U.S. at 487 & n.20; Ashcroft, 535 U.S. at

579. The record supports this inference. Multiple Plaintiffs testified to

receiving audience complaints or facing law enforcement responses from

_____________________

8

Although “prurient interest in sex” suggests the Texas Legislature may have

intended to invoke the Supreme Court’s formulation in Miller v. California, 413 U.S. 15, 24

(1973), Senator Hughes rejected that interpretation, and the Act omits the other two

elements of the Miller test. See Hearing on S.B. 12 before the Texas Senate, 88th Leg., R.S. at

7:20–7:35 (April 4, 2023) (Statement of Senator Bryan Hughes), https://perma.cc/9W2D-

ULUY; Tex. Penal Code § 43.28(a)(2).

29

Case: 23-20480 Document: 286-1 Page: 30 Date Filed: 11/06/2025

No. 23-20480

individuals who perceived their performances as sexual in nature. Others

explained that the phrase “prurient interest” was itself subjective and

indeterminate—often tied to a viewer’s own “independent moral code,” or

whatever that observer “thinks and feels.”

The Attorney General resists this conclusion by arguing that Plaintiffs

have repeatedly disclaimed any intention of conveying sexually explicit

messages. But his argument misconstrues the present inquiry. The question

is not whether Plaintiffs seek to violate the law or whether they subjectively

view their performances as erotic; rather, it is whether those performances

could arguably be interpreted by a factfinder as falling within the statute’s

scope. See Turtle Island Foods, 65 F.4th at 217 (explaining that a plaintiff

“need not establish that [they] openly intend[] to violate the law”

(alterations in original) (quoting Driehaus, 573 U.S. at 163 (2014)); see also

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 301 (1979)

(holding a case justiciable even though the plaintiffs disavowed any intent to

“propagate untruths”). It is entirely plausible that Plaintiffs’ gendered

expressions, costuming, prosthetics, and choreography could be viewed by

factfinders and officials empowered to enforce S.B. 12 as appealing to the

prurient interest in sex.

Finally, Plaintiffs’ performances arguably occur “in the presence of

an individual younger than 18 years of age” or “in a manner that could

reasonably be expected to be viewed by a child.” Tex. Penal Code

§ 43.28(b)(1)–(2); Tex. Local Gov’t Code § 243.0031(c)(1)–(2). This

element is satisfied in at least two distinct settings reflected in the record:

first, those performances expressly open to all ages, where drag prosthetics,

choreography, or wardrobe mishaps could expose performers to liability

regardless of intent; and second, those performances tailored for adult

audiences where minors may still be present or capable of observing the

event.

30

Case: 23-20480 Document: 286-1 Page: 31 Date Filed: 11/06/2025

No. 23-20480

Extragrams, Woodlands Pride, and Abilene Pride fall within the first

category. Each regularly organizes public-facing performances, including

festivals, community gatherings, and private events, where children are

either expressly invited or routinely present. Extragrams’s drag entertainers

perform at a variety of private and public gatherings including parties,

weddings, holiday events, and bingo nights where children may be in

attendance. Woodlands Pride and Abilene Pride hosts events—most notably,

large-scale festivals—on public property where minor attendees are not only

permitted but welcomed. Because children are routinely present at these

events, the performances will occur “in the presence of” minors. Tex.

Penal Code § 43.28(b)(1); Tex. Local Gov’t Code

§ 243.0031(c)(2). And even if Plaintiffs confirmed that no minors were in the

audience, the accessible nature of these public venues makes it at least

arguable that the performances occur “in a manner that could reasonably be

expected to be viewed by a child.” Tex. Penal Code § 43.28(b)(1).

Bandit and 360 Queen fall into the second, adult-oriented category.

Bandit testified that she cannot ensure all audience members at her adult-

oriented performances are over the age of eighteen. Admission to her

performances is typically controlled by the hosting venue, which may admit

minors with parental consent. And Bandit recalled instances where parents

brought their seventeen-year-old children to her shows. She also described

performing at venues with outdoor stages or transparent façades, where her

shows could be seen from adjacent sidewalks, nearby hotels or apartments,

or public thoroughfares. Similarly, 360 Queen’s drag performances take

place on a restaurant patio, which is separated from the indoor dining room

only by a long wall made entirely of windows. While access to the patio show

is ticketed and generally restricted to adults, minors are permitted with

parental approval. Moreover, the patio is visible to patrons dining inside the

restaurant, which is separated only by a wall of windows. The patio itself is

31

Case: 23-20480 Document: 286-1 Page: 32 Date Filed: 11/06/2025

No. 23-20480

bordered on three sides by a parking lot, and nearby commercial

establishments also have a clear line of sight into the venue. Although Bandit

and 360 Queen’s events are intended for adult audiences, these structural

features make it likely that a minor will observe a performance even without

formal admission. In such circumstances, it is at least arguable that the

performances occur in a manner reasonably expected to be viewed by a child.

The Attorney General counters that a minor’s unintentional or

incidental exposure is insufficient to trigger liability under S.B. 12, positing

that “presence” requires both physical proximity and conscious awareness.

In other words, a minor must be knowingly situated in the audience—not a

passerby, remote observer, or otherwise unaware onlooker. But the statute

provides no definition of “presence,” and Plaintiffs offer a competing

reading grounded in alternative dictionary definitions; namely, “[t]he

quality, state, or condition of being in a particular time and place,” with no

requirement of perception or attentiveness. See Presence, Black’s Law

Dictionary (11th ed. 2019). 9 On this textual ambiguity alone, it is at least

arguable that S.B. 12 applies when a performance is observable by a minor

from an adjacent sidewalk, parking lot, restaurant interior, or public

thoroughfare.

I also would reject the Attorney General’s claim that the statute

implicitly incorporates a scienter requirement—specifically, criminal

negligence—such that performers would not be liable under Sections One or

_____________________

9

When interpreting an undefined term in a Texas statute, we look to its ordinary

meaning informed by dictionary definitions and relevant legal usage. Malouf v. State, 694

S.W.3d 712, 718 (Tex. 2024); Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v.

Tex. Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017); see also Antonin Scalia & Bryan A.

Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419, 423, 428 (2013) (noting

that Black’s Law Dictionary is among “the most useful and authoritative for the

English language generally and for law”).

32

Case: 23-20480 Document: 286-1 Page: 33 Date Filed: 11/06/2025

No. 23-20480

Three absent a failure to perceive a substantial and unjustifiable risk. See

Tex. Penal Code § 6.03(d). Section Three is silent with respect to mens

rea and under Texas law, such silence supports the presumption of strict

liability. See id. § 6.02(b); Aguirre v. State, 22 S.W.3d 463, 470 (Tex. Crim.

App. 1999) (“The typical strict liability statute is ‘empty’—it simply says

nothing about a mental state.”), as modified on denial of reh’g (Dec. 8, 1999). 10

The same is true of the civil penalty provision. As the Texas Supreme Court

has explained, where a civil penalty statute “makes no provision for

knowledge or intent,” it “does not include culpability as an element.” State

v. Houdaille Indus., Inc., 632 S.W.2d 723, 729 (Tex. 1982). Nothing in the

statutory text necessarily precludes strict criminal or civil liability where a

minor is present or capable of viewing the proscribed performances. That

includes settings where minors are admitted by parental choice, or where

performances are observable through glass façades, from public sidewalks, or

in other accessible spaces.

In sum, Plaintiffs’ testimony, credited by the district court and

consistent across each Plaintiff, amply establishes that their intended course

of conduct is arguably proscribed by S.B. 12. Their shows feature costuming,

choreography, and physical expression that plausibly constitute “sexual

conduct” or “nudity” that may be seen to “appeal to the prurient interest in

sex,” particularly under the statute’s ambiguous terms. These performances

also occur in settings where minors are arguably present or could reasonably

be expected to view them. This is sufficient to satisfy the “arguably

_____________________

10

Indeed, Aguirre noted a tradition in Texas criminal law of “finding statutes to

impose strict liability as to entire offenses affecting public health and safety, and as to the

element of a child’s age in statutes that protect children.” 22 S.W.3d at 475 (collecting

cases).

33

Case: 23-20480 Document: 286-1 Page: 34 Date Filed: 11/06/2025

No. 23-20480

proscribed” standard for pre-enforcement standing. See Turtle Island Foods,

65 F.4th at 217.

2. Credible Threat of Prosecution

Plaintiffs also have established a credible threat of prosecution under

S.B. 12. In the context of a pre-enforcement challenge to a law regulating

speech, we assume such a threat exists where the statute “facially restrict[s]

expressive activity by the class to which the plaintiff belongs,” unless the

government offers “compelling contrary evidence” to rebut that

presumption. Id. at 218 (alteration in original) (quoting Speech First, 979 F.3d

at 335). Plaintiffs here engage in protected First Amendment expression for

the purposes of standing and fall within the class of speakers S.B. 12 was

enacted to reach. Accordingly, the presumption of a credible enforcement

threat attaches, and the burden shifts to Defendants to rebut it with evidence

that is not merely speculative or conclusory, but “compelling.” Id.

The record contains no such rebuttal. Defendants point to the absence

of prior prosecutions or explicit statements of intent to apply the statute to

Plaintiffs. But Defendants refused to disavow an intention to enforce the

statute against Plaintiffs. In fact, counsel for Bexar County District Attorney

Joe D. Gonzales emphasized at trial that “no district attorney or prosecutor

in the state can basically disavow an intent to prosecute any criminal offense

in the state.” Even if Defendants had disavowed enforcement, that would not

suffice to defeat standing as the “lack[] [of] any intention to penalize the

intended conduct” is not compelling contrary evidence. Id. (quoting Speech

First, 979 F.3d at 336). Nor does the fact that the statute has not yet been

enforced foreclose a finding of standing. As we have long held, “[t]hat the

statute has not been enforced and that there is no certainty that it will be does

not establish the lack of a case or controversy.” KVUE, Inc. v. Moore, 709

F.2d 922, 930 (5th Cir. 1983). Because S.B. 12 arguably targets the

34

Case: 23-20480 Document: 286-1 Page: 35 Date Filed: 11/06/2025

No. 23-20480

expressive conduct in which Plaintiffs routinely engage, and because no

Defendant has provided compelling evidence to the contrary, the threat of

enforcement is credible.

B

I turn next to the causation prong of standing: whether Plaintiffs have

shown that their First Amendment injuries—manifested in chilled speech

and self-censorship—are fairly traceable to the enforcement authority of the

Defendants named in this suit.

Beginning with the Attorney General, his enforcement authority

under Section One of S.B. 12 is limited to “a person who controls the

premises of a commercial enterprise.” Tex. Health & Safety Code

§ 769.002(a)–(c) (emphasis added). He contends that no Plaintiff exercises

such control. But as with his other objections to standing, this argument can

be distilled to a disagreement over the meaning of statutory language, and we

ask only whether Plaintiffs’ interpretation of “controls” is arguably correct.

Turtle Island Foods, 65 F.4th at 218. “Control” commonly means to

“exercise power or influence over,” or to “regulate or govern.” Control,

Black’s Law Dictionary (11th ed. 2019); see also In Int. of H.S., 550

S.W.3d 151, 157 (Tex. 2018).

The Attorney General urges a narrow interpretation that equates

“controls” with legal ownership or proprietorship of a venue. Like the

majority, I view this reading as arguably too narrow. Section One proscribes

“allow[ing]” a minor to attend a performance on commercial premises and

predicates liability on those who “control[]” the premises. Tex. Health

& Safety Code § 769.002(a). This statutory structure suggests

“controls” and the transitive verb “allow” must be read together. Cf. Cruz

v. Abbott, 849 F.3d 594, 599 (5th Cir. 2017). The plain meaning of “allow” is

“[t]o give consent to” or “to approve.” Allow, Black’s Law

35

Case: 23-20480 Document: 286-1 Page: 36 Date Filed: 11/06/2025

No. 23-20480

Dictionary (12th ed. 2024). It follows that a person arguably controls the

premises of a commercial enterprise if they “regulate” that premises such

that it gives “consent” or otherwise “approve[s]” of a minor’s attendance

to a sexually oriented performance. Id. The meaning of “controls,” then, is

not necessarily limited to only owners or proprietors of a business. This

reading finds further support in the legislature’s decision not to use more

precise terms such as “owner” or “operator.” See Seals v. State, 187 S.W.3d

417, 421 (Tex. Crim. App. 2005) (en banc).

On this reading, 360 Queen arguably exercises control over the

premises of a commercial enterprise during its performances. The

company’s owner testified that it books drag artists to perform on the patio

of a local restaurant and that, under a written agreement with the restaurant,

it enjoys exclusive use of the performance area during the show. 360 Queen

manages ticket sales, staff placement, and audience admission, while the

restaurant restricts its role to food and beverage service. These facts support

that 360 Queen plausibly “controls” the premises within the meaning of the

statute, and that its First Amendment injury is therefore fairly traceable to

the Attorney General’s enforcement authority under Section One. 11

Woodlands Pride and Abilene Pride also have shown that their injuries

are fairly traceable to the threat of criminal prosecution by Montgomery

County District Attorney Brett Ligon and Taylor County District Attorney

James Hicks, respectively. Liability under Section Three extends to any

“person” who “engages in a sexually oriented performance” in the presence

of a minor. Tex. Penal Code § 43.28(b). The Texas Penal Code defines

_____________________

11

Because I agree that 360 Queen has standing to enjoin the Attorney General’s

enforcement of Section One, the remaining Plaintiffs also have standing to press their First

Amendment claims against the Attorney General. Horne v. Flores, 557 U.S. 433, 446–47

(2009); Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 n.7 (2008).

36

Case: 23-20480 Document: 286-1 Page: 37 Date Filed: 11/06/2025

No. 23-20480

“person” to include not only individuals but also corporations, limited

liability companies, and other legal entities. Id. § 1.07(38); see also Vaughan &

Sons, Inc. v. State, 737 S.W.2d 805, 811 (Tex. Crim. App. 1987) (en banc).

The term “engage,” though undefined, carries its ordinary meaning: “[t]o

employ or involve oneself,” “to take part in,” or “to embark on.” Engage,

Black’s Law Dictionary (12th ed. 2024).

Both organizations operate as nonprofit corporations and routinely

sponsor public drag performances arguably proscribed by S.B. 12 within

Montgomery and Taylor Counties. Their organizational role in producing

and facilitating these events places them within the class of “persons” who

may be held liable under Section Three. Tex. Penal Code §§ 1.07(38),

7.02(a)(2); see also Vaughan & Sons, 737 S.W.2d at 811. Moreover, Texas law

imposes criminal liability on entities that aid, direct, or encourage the

commission of an offense. See Tex. Penal Code § 7.02(a)(2). Woodlands

Pride and Abilene Pride, then, plausibly faces a dual risk of criminal liability

under Section Three traceable to Ligon and Hicks’s enforcement of that

provision. Woodlands Pride also explained that its expressive mission

depends on the participation of performers who now fear prosecution. That

fear has already caused disruptions to the organization’s programming.

Abilene Pride similarly expressed that it has considered abandoning drag

altogether “to keep [its performers] as safe as [possible].” These injuries are

no less traceable—they are the predictable result of the threat of enforcement

by the district attorneys charged with applying Section Three and are thus

sufficient to support standing. See Dep’t of Com. v. New York, 588 U.S. 752,

768 (2019). I thus part from the majority opinion’s conclusions here.

The showing of traceability, however, is more limited with respect to

the municipality and county Defendants charged with enforcing Section

Two: the City of Abilene, Taylor County, and Montgomery County.

Woodlands Pride and Abilene Pride contend their injuries are traceable to

37

Case: 23-20480 Document: 286-1 Page: 38 Date Filed: 11/06/2025

No. 23-20480

these Defendants by virtue of Section Two’s negative command, which

provides that municipalities and counties “may not authorize” a sexually

oriented performance on public property or in the presence of a minor. Tex.

Local Gov’t Code § 243.0031(c) (emphasis added). These Plaintiffs

allege that Section Two’s blanket prohibition has compelled them to alter or

forgo drag performances planned for public festivals and similar events,

thereby chilling their speech. The relevant inquiry, then, is whether these

municipal and county Defendants bear some connection to authorizing the

events in question. If they do, then Section Two imposes a legal obligation

that links their refusal or inability to authorize those events with the

constitutional injuries Plaintiffs allege.

That connection is plainly established with respect to Abilene Pride’s

claims against the City of Abilene. The organization hosts an annual pride

parade on city property that includes performances arguably proscribed by

S.B. 12. City approval is required before the event may proceed, 12 and

Abilene Pride credibly fears that, in light of Section Two, the City of Abilene

must revoke or deny the necessary permits. That concern has already led the

organization to adopt contingency measures, including the removal of a drag

float from its parade and the relocation of drag performances from its all-ages

festival to a private venue. These acts of self-censorship, compelled by the

City of Abilene’s statutory obligations, render Abilene Pride’s injuries fairly

traceable to the City’s enforcement of Section Two.

By contrast, neither Plaintiff identifies evidence sufficient to establish

a similar link to Taylor County or Montgomery County, so I join the

majority’s judgment as to these Defendants. Abilene Pride’s only asserted

connection to Taylor County involves a planned pride festival at the Taylor

_____________________

12

See Abilene, Tex., Code ch. 29, art. IX, § 29-162(a) (2013).

38

Case: 23-20480 Document: 286-1 Page: 39 Date Filed: 11/06/2025

No. 23-20480

County Expo Center. That facility is leased and operated by a nonprofit

organization, and while Taylor County owns the underlying property, the

City of Abilene—not the county—handles all permitting decisions related to

the event. There is no evidence that Taylor County exercises any authority

to approve or prohibit the event itself, nor is there any indication that it plays

a role in enforcing Section Two against Abilene Pride’s use of the venue.

Woodlands Pride’s situation is similar. It holds its annual pride

festival at Town Green Park, a public park owned and operated by The

Woodlands Township—a non-party special-purpose district within

Montgomery County. The Township owns the park, issues permits for

events hosted there, and exercises sole responsibility over its use. 13 At trial,

Woodlands Pride confirmed that the organization has never sought nor

required permission from Montgomery County to use the park for its festival.

On this record, there is no indication that Montgomery County plays any role

in the permitting process, nor any showing that it exercises the kind of

approval authority that would implicate Section Two. I thus agree with the

majority that Montgomery County should be dismissed without prejudice.

Woodlands Pride offers two additional grounds to support a traceable

injury to Montgomery County, but neither suffices on the present record.

First, the organization argues that Section Two endangers its ability to obtain

a temporary event permit to sell alcohol at its festivals, which it claims must

be approved by the county sheriff. That assertion, however, misapprehends

the relevant statutory framework. Under Texas law, the Texas Alcoholic

Beverage Commission—not county officials—has exclusive authority over

_____________________

13

See The Woodlands Township, Tex., Order 019-09 (Nov. 16, 2009) (amended

2023). Plaintiffs stipulated as to the dismissal of The Woodlands Township upon its

representation that it is “not a ‘municipality’ within the scope of the Texas Local

Government Code that Senate Bill 12 seeks to amend.”

39

Case: 23-20480 Document: 286-1 Page: 40 Date Filed: 11/06/2025

No. 23-20480

such permits. See Tex. Alco. Bev. Code §§ 11.31, 30.02. Even assuming

Montgomery County had some role in that process, Woodlands Pride

presented no evidence that the denial of an alcohol permit would interfere

with its ability to hold a public festival or that expressive activity depends on

such sales. Second, Woodlands Pride claims that its ability to obtain a festival

permit from The Woodlands Township is threatened by its reliance on a

county contract for off-duty officers to fulfill a required security plan. Yet

Woodlands Pride conceded that it contracts directly with off-duty officers,

not the county itself, and that Township regulations do not require security

to be provided by county law enforcement. Moreover, the organization

presented no evidence that its ability to proceed with its public events would

be meaningfully impaired absent that particular arrangement. This evidence

is insufficient to show that Woodlands Pride’s injury is fairly traceable to

Montgomery County’s obligations under Section Two.

At bottom, I would find that Woodlands Pride and Abilene Pride have

not demonstrated that their injuries are fairly traceable to any enforcement

authority exercised by Montgomery County or Taylor County under Section

Two of S.B. 12. I otherwise see no error in the district court’s determination

that Plaintiffs have standing to pursue their claims. 14

_____________________

14

I agree with the majority that sovereign immunity does not bar Plaintiffs’ claims

against the Attorney General, who is a proper Ex parte Young defendant given his specific

enforcement authority under Section One of S.B. 12. See City of Austin v. Paxton, 943 F.3d

993, 997 (5th Cir. 2019); Tex. All. for Retired Americans v. Scott, 28 F.4th 669, 672 (5th Cir.

2022). The same bottom line applies to the district attorney Defendants because they are

not protected by the Eleventh Amendment in the first place. District Attorneys Ligon and

Hicks are county officials rather than state officials. And as our court recently held, “‘Texas

district attorneys [are] not protected by the Eleventh Amendment’ precisely because they

are county officials, not state officials.” Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th

770, 780 (5th Cir. 2024) (alteration in original) (quoting Hudson v. City of New Orleans, 174

F.3d 677, 682 (5th Cir. 1999)). Sovereign immunity does not bar this suit.

40

Case: 23-20480 Document: 286-1 Page: 41 Date Filed: 11/06/2025

No. 23-20480

III

The district court ruled that Plaintiffs’ performances constitute

protected expression and that S.B. 12 facially violates the First Amendment.

Since then, the Supreme Court decided Moody v. NetChoice, LLC, clarifying

the framework for First Amendment facial challenges. 603 U.S. 707, 724–26

(2024). In light of Moody, I agree with the majority that remand is appropriate

so the district court can apply the Court’s comparative inquiry across the

statute’s full range of applications. I am far less persuaded, however, that

vacating the injunction is necessary to accomplish that task; a limited remand

without vacatur would suffice and better preserves the status quo while the

court undertakes the analysis Moody now requires.

In any event, the majority’s vacatur does not disturb the portion of the

district court’s injunction barring Travis County Attorney Delia Garza and

Bexar County District Attorney Joe D. Gonzales from enforcing Section

Three of S.B. 12 because (1) neither appealed; (2) as to the district attorneys

who did appeal, the majority dismisses on standing and never reaches the

merits of injunctive relief; and (3) the majority expressly limits its analysis to

the Attorney General’s enforcement of Section One. See, e.g., United States

v. City of Miami, 664 F.2d 435, 445 (5th Cir. 1981) (en banc) (plurality op.)

(Rubin, J., concurring) (“[A]n appellant may not appeal on behalf of others

who have chosen not to intervene or to appeal.”); Tompkins v. Cyr, 202 F.3d

770, 786–87 (5th Cir. 2000) (vacating erroneous damages calculation only as

to “the losing defendants who have appealed” but declining to “vacate the

damage award against the non-appealing defendants” despite the error’s

effect on the common verdict); Wright & Miller’s Federal

Practice & Procedure § 3950.7 (5th ed. 2025) (“[O]ther parties who

have not joined in [an] initial notice of appeal must file their own notices of

appeal if they wish to attack all or a portion of the judgment below and to be

41

Case: 23-20480 Document: 286-1 Page: 42 Date Filed: 11/06/2025

No. 23-20480

relieved of the consequences thereof.”). The district court’s injunction

therefore remains operative as to those non-appealing Defendants.

* * *

Finally, the majority makes a passing remark that it harbors “genuine

doubt” whether Plaintiffs’ drag performances are protected by the First

Amendment. Ante, at 14 n.9. That aside is dictum, contrary to settled First

Amendment precedent, and it should not be read to constrain the district

court’s analysis on remand.

The First Amendment’s protection “does not end at the spoken or

written word,” Texas v. Johnson, 491 U.S. 397, 404 (1989), and it embraces

conduct “sufficiently imbued with elements of communication,” Spence v.

Washington, 418 U.S. 405, 409 (1974) (per curiam). Live performance, dance,

theater, satire, and costuming falls comfortably within that ambit. See, e.g.,

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975). The Court has

repeatedly safeguarded a “wide array of conduct that can qualify as

expressive, including nude dancing, burning the American flag, flying an

upside-down American flag with a taped-on peace sign, wearing a military

uniform, wearing a black armband, conducting a silent sit-in, refusing to

salute the American flag, and flying a plain red flag.” Masterpiece Cakeshop,

Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 657 & n.1 (2018) (Thomas, J.,

concurring) (collecting cases). And under Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, a “narrow, succinctly articulable message

is not a condition of constitutional protection.” 515 U.S. 557, 569 (1995); see

also Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (“[W]e have long

recognized that it is difficult to distinguish politics from entertainment, and

dangerous to try.”).

Drag—a costumed, choreographed, and frequently parodic

performance that speaks in the idiom of gender—plainly participates in that

42

Case: 23-20480 Document: 286-1 Page: 43 Date Filed: 11/06/2025

No. 23-20480

protected tradition. See Spectrum WT v. Wendler, 151 F.4th 714, 729 (5th Cir.

2025) (Southwick, J.) (“Because theatrical performances plainly involve

expressive conduct within the protection of the First Amendment, and

because we find the plaintiffs’ drag show is protected expression,

discrimination among such shows must pass strict scrutiny.”), reh’g en banc

granted, op. vacated, No. 23-10994, 2025 WL 3008019 (5th Cir. Oct. 27,

2025); HM Fla.-ORL, LLC v. Governor of Fla., 137 F.4th 1207, 1227 (11th Cir.

2025) (finding substantively identical Florida law aimed at restricting drag

shows and venues “reaches First-Amendment-protected speech, not just

unprotected obscenity”); Naples Pride, Inc. v. City of Naples, 2025 WL

1370174, at *10 (M.D. Fla. May 12, 2025) (collecting persuasive authorities

finding “that drag performances can be protected by the First

Amendment”); Luke A. Boso, Exclusionary Expressive Conduct, 66 Bos. L.

Rev. 295, 298 (2025) (“How could a . . . federal judge conclude that a

traditional lesbian, gay, bisexual, transgender, and queer (LGBTQ) form of

art, entertainment, and political resistance is not sufficiently expressive to

warrant First Amendment analysis?”); Mark Satta, Shantay Drag Stays:

Anti-Drag Laws Violate the First Amendment, 25 Geo. J. Gender & L. 95,

104 (2023) (“[D]rag performances are expressive conduct in virtue of being

artistic performances that express a variety of messages, similar to those the

Supreme Court has already recognized.”). The majority’s effort to collapse

an entire art form into a few salacious acts turns these principles on their

head.

Nor does the presence of sexual expression or purported goal of

protecting minors remove First Amendment protections. The Court has

insisted that “sex and obscenity are not synonymous.” Roth, 354 U.S. at 487.

Although obscenity—defined and cabined by Miller v. California, 413 U.S. 15

(1973)—may fall beyond the First Amendment’s scope, “sexual expression

which is indecent but not obscene is protected,” Sable Commc’ns of Cal., Inc.

43

Case: 23-20480 Document: 286-1 Page: 44 Date Filed: 11/06/2025

No. 23-20480

v. FCC, 492 U.S. 115, 126 (1989), and a state’s power to shield minors is

circumscribed by Ginsberg v. New York, 390 U.S. 629 (1968). Texas already

possesses those tools by prohibiting “obscene” performances and the

“exhibition” of “harmful material” to minors. Tex. Penal Code

§§ 43.23(c)(2), .24(b)(1). What it may not do—and what S.B. 12 does—is

discard Miller and Ginsberg’s guardrails and suppress protected

performances through undefined, sweeping terms like “prurient interest,” a

path that Roth’s author found unworkable. See Paris Adult Theatre I v. Slaton,

413 U.S. 49, 73 (1973) (Brennan, J., dissenting) (“I am convinced that the

approach initiated 16 years ago in Roth . . . cannot bring stability to this area

of the law without jeopardizing fundamental First Amendment values.”); see

also City of Houston v. Hill, 482 U.S. 451, 480 (1987) (Powell, J.,

concurring in part) (“[T]he ambiguous terms of this ordinance confe[r] on

[the state] a virtually unrestrained power to arrest and charge persons with a

violation. . . . The opportunity for abuse, especially where a statute has

received a virtually open-ended interpretation, is self-evident.” (internal

quotations and citation omitted)). The majority’s dictum invites precisely

that instability.

Accordingly, I respectfully concur in the judgment in part and dissent

in part.

44