Federal judge says drag not protected by First Amendment

Other judges say it is.
U.S. District Judge Matthew Kacsmaryk ruled on Sept. 21 that West Texas A&M University, a public university in Canyon, Texas, can constitutionally ban on-campus drag performances, at least for now. Kacsmaryk, a Trump appointee best known for attempting to revoke the Food and Drug Administration’s approval of medication abortion, described all drag performances as inherently sexualized and stated that at “this point in Free Speech jurisprudence, it is not clearly established that all ‘drag shows’ are categorically ‘expressive conduct’ ” entitled to First Amendment protection.
In March 2023, Spectrum WT, a student organization that seeks to “provide a safe space for LGBT+ students” and “raise awareness of the LGBT+ community,” planned to host a fundraiser to raise funds for The Trevor Project, a non-profit organization that provides crisis intervention and suicide prevention services to queer youth. This fundraiser would have included a drag show.
Before Spectrum WT could host its event, West Texas A&M University President Walter Wendler issued a letter announcing that the university “will not host a drag show on campus.” In his letter, Wendler likens drag performances to blackface and describes them as “derisive, divisive and demoralizing misogyny” and claims they “stereotype women in cartoon-like extremes for the amusement of others[,] discriminate against womanhood [and] contribute to women’s suffering via a slapstick sideshow that erodes the worth of women.” Wendler also stated that he would not permit Spectrum WT’s drag show, or any future ones, “even when the law of the land appears to require it.”
In response to this letter, Spectrum WT sued Wendler and other university administrators for violating the First Amendment. As part of its lawsuit, Spectrum WT requested a preliminary injunction which would have, if granted, presumed Wendler’s actions unconstitutional and temporarily barred the university from enforcing its ban on drag shows until the court reached a final decision in the case.
In his order denying Spectrum WT’s request for a preliminary injunction, Kacsmaryk gives four reasons to justify his decision to deprive Spectrum WT’s drag show of First Amendment protection. First, he writes that drag shows do not “obviously convey or communicate a discernable, protectable message.” Second, the university’s campus is not a “traditional public forum.” Third, Wendler can regulate “sexualized conduct” to “protect children.” Fourth, an on-campus drag show could potentially violate federal, state, and university policies prohibiting discrimination against women.
For the foregoing reasons, Kacsmaryk concludes that President Wendler did not violate a “clearly established right” and that his disapproval of an on-campus drag show was not “objectively unreasonable.” While Kacsmaryk’s order presumes the constitutionality of President Wendler’s actions, it is not a final decision, nor does it carry any precedential weight for this case or other cases.
Kacsmaryk’s suggestion that drag show performances are protected by the First Amendment runs counter to every other federal judge that has adjudicated state efforts to censor drag. Judges in Florida, Montana, Utah and Tennessee have blocked laws seeking to ban or restrict drag performances.
Another federal judge in Texas has invalidated anti-drag legislation as unconstitutional since Kacsmaryk’s order last month. U.S. District Judge David Hittner struck down Texas’ S.B. 12 on Sept. 26 as violative of the First Amendment. This law, described by Texas officials as a “drag ban,” sought to ban so-called “sexually oriented performances” from public property and allowed municipalities to regulate “sexually oriented performances” however they see fit. Hittner’s ruling comes after he granted S.B. 12’s challengers a preliminary injunction on Aug. 31 before the law took effect. Texas Attorney General Ken Paxton intends to appeal Hittner’s ruling to the Fifth Circuit Court of Appeals and has pledged to appeal to the U.S. Supreme Court if Texas again loses.
Spectrum WT, represented by the Foundation for Individual Rights and Expression, has since appealed Kacsmaryk’s denial of a preliminary injunction to the Fifth Circuit Court of Appeals while its lawsuit proceeds in the District Court. In a press release, it characterized Kacsmaryk’s order as “disheartening and a slap in the face to freedom of speech.”