Federal Judge Blocks Texas Drag Show Ban for Second Time on August 26

U.S. District Judge David Hittner struck down Texas Senate Bill 12 for the second time on Tuesday, August 26, ruling the 2023 law banning drag performances in front of children violates the First Amendment. The law would have fined businesses up to $10,000 and subjected performers to up to one year in jail. Hittner’s decision blocks Attorney General Ken Paxton, who is running for U.S. Senate, from enforcing the measure. The ruling came after the Fifth Circuit Court of Appeals returned the case to Hittner in February 2026 for further analysis.

Why the judge blocked the law twice

Hittner first ruled the law unconstitutional in September 2023, but the Fifth Circuit lifted that pause in February 2026, allowing the law to take effect for the first time. On Tuesday, Hittner reaffirmed his original decision after following the appellate court’s framework. He found the law overly broad and vague, stating it could apply to Olympic swimmers, ballet dancers, and Elvis impersonators. The judge wrote that the vast majority of the law’s applications violate the First Amendment because all performances it targets are constitutionally protected.

Hittner’s Dolly Parton example

In his ruling, Hittner cited Dolly Parton, who died on Tuesday, to illustrate how vague the law’s definition of banned performances was. He noted that people have criticized Parton as a sex symbol because of her big hair, flamboyant clothes, and breast exposure. The judge wrote that a Dolly Parton impersonator wearing a breast plate while dancing could be prohibited under the law. Hittner also referenced Elvis’s hip gyrations and Miley Cyrus’s twerking as examples of performances with erotic elements that countless artists have performed without legal consequence.

What happens next and Paxton’s response

Hittner’s ruling prevents Paxton from enforcing Senate Bill 12 and denies his motion for a new trial. Paxton said he would appeal the decision, calling it a profoundly flawed decision that endangers children. The original lawsuit was filed by two community pride groups, two entertainment groups, and Brigitte Bandit, a drag queen and LGBTQ+ rights activist. After the appeals court ruling, the two pride groups were removed as plaintiffs, leaving Paxton as the sole defendant.

The judge’s message to critics

Hittner addressed people offended by drag performances directly in his ruling. He wrote: The solution is relatively simple. Just don’t go. The judge emphasized that the law’s vague language about performances that appeal to the prurient interest could condemn an entire performance based on a single moment of eroticism, with no requirement that the work be taken as a whole.

Final Thoughts

Texas cannot enforce its drag show ban under the First Amendment, according to Judge Hittner’s second ruling on August 26. Paxton has vowed to appeal, setting up another legal battle in the Fifth Circuit. The ruling protects drag performers’ constitutional right to free expression.

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