A federal appeals court on Thursday allowed a Texas law outlawing minors from attending “sexually oriented performances” to proceed, after a lower court previously struck down the law as unconstitutional.
A three-judge panel on the U.S. Court of Appeals for the Fifth Circuit tossed a 2023 ruling from a federal district court that had permanently blocked the law, which bans “sexually oriented performances,” including drag shows, from being performed on public property and in the presence of people under the age of 18 years old. The panel sent the case back to the lower district court and instructed the judge to review whether the law violated the Free Speech Clause of the First Amendment.
“The law is not facially invalid unless its ‘unconstitutional applications substantially outweigh its constitutional ones,'” the ruling said. “The district court did not conduct this analysis, nor did the parties
brief the proper standard or adequately develop the record. Consequently, we are unequipped to undertake this task in the first instance, and remand for the district court to do so.”
The ruling lifts the injunction on enforcing the law, but allows the court to continue reviewing the claims of a First Amendment violation. While the appeals court did not rule on the merits of the First Amendment claims, the majority opinion did express “genuine doubt” over whether some of the performances put on by the groups suing would be constitutionally protected.
“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,” a footnote in the opinion said.
“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,'” the judges continued.
The ruling marked a victory for Texas and a split from a different federal appeals court on the matter. Earlier this year, a panel on the U.S. Court of Appeals for the 11th Circuit held that a similar Florida law was “likely unconstitutional on its face.”
TRUMP MAY FINALLY GET SOME LOSSES AS SUPREME COURT TURNS TO MERITS DOCKET
While the Fifth Circuit panel did not fully rule on the merits of the Texas law, the issue could still be headed for the Supreme Court in the coming years as challenges of similar underage drag show attendance bans continue to move through the courts.
The Supreme Court will hear a pair of cases challenging the legality of state laws that limit women’s sports to biological women this term, after upholding a Tennessee law banning transgender procedures for minors during its last term. The high court also upheld a Texas law mandating age verification to access pornography websites during the last term, dismissing First Amendment concerns about impeding adults’ access to the explicit content.
