Federal Judge Strikes Down Texas Drag Ban for a Second Time

US District Judge David Hittner struck down Texas Senate Bill 12 for a second time on August 25, 2026, ruling that the state cannot enforce the law banning drag performances in settings where children may be present. The ruling, first reported by the Texas Tribune, declares SB 12 unconstitutional on First Amendment grounds (Texas Tribune).

Judge Hittner found that the law improperly restricts speech and violates the First Amendment. He also concluded that drag performances are not inherently obscene, and that SB 12 is discriminatory and unconstitutionally vague — meaning the law's language is too unclear for people to know what conduct it actually prohibits (Reuters; Courthouse News). The ACLU of Texas, which challenged the law, announced the ruling in a press release on August 25 (ACLU of Texas).

Texas Senate Bill 12, passed in March 2023, prohibits drag performers from dancing suggestively or wearing certain prosthetics on public property or in front of children. It also bans sexually oriented performances presented in the presence of anyone younger than 18 (The Guardian). Governor Greg Abbott touted SB 12 as a drag ban after its passage (Texas Tribune).

This is Judge Hittner's second ruling against the law. He first declared SB 12 unconstitutional in September 2023, finding it discriminatory and improperly vague. The 5th US Circuit Court of Appeals — a federal court one level above Hittner's — subsequently unblocked the law in 2025 and returned the case to him for further proceedings. Following the appellate ruling, the Texas Attorney General's Office published a press release in November 2025 titled "Attorney General Ken Paxton Successfully Defends Law Protecting Children from Being Exposed to Sexually Illicit Content at Erotic Drag Shows" (Texas Attorney General). First Amendment Watch noted that the appeals court's decision cleared the way for the drag ban to take effect in early 2026 (First Amendment Watch).

In his renewed ruling, Hittner addressed the law's definitional problems at length. He cited Dolly Parton in critiquing the statute's prohibition of performances that "appeal to the prurient interest" — a legal term for material that appeals to an unhealthy interest in sex. Hittner wrote that SB 12's broad terms could block mainstream performers like Lady Gaga or Miley Cyrus from appearing in Texas. The judge warned that the law's breadth could render everyday activities, including cheerleading, dancing, and live theater, vulnerable to civil or criminal charges (The Guardian).

Texas Attorney General Ken Paxton responded swiftly. In a statement on X (Twitter), Paxton called the decision "a profoundly flawed decision that endangers our children" and said he would immediately appeal (Courthouse News). The case now heads back to the 5th Circuit, which previously reversed Hittner's initial injunction and allowed the law to take effect.

The procedural posture is notable. The 5th Circuit's 2025 reversal sent the case back with instructions that likely narrowed the constitutional questions Hittner was permitted to revisit, yet the judge reached the same conclusion: SB 12 fails First Amendment scrutiny. Hittner's invocation of mainstream pop performers and everyday expressive activities signals an overbreadth theory — the idea that a law regulating speech is invalid if it sweeps in a substantial amount of constitutionally protected expression alongside whatever unprotected conduct it targets. The Supreme Court has repeatedly struck down laws on overbreadth grounds when their application cannot be reliably limited to constitutionally unprotected categories such as obscenity.

The tension between Hittner's district court rulings and the 5th Circuit's prior reversal sets up a recurring pattern that could ultimately require Supreme Court resolution. The 5th Circuit is among the most conservative federal appellate benches in the country, and its 2025 decision to unblock SB 12 suggested a willingness to defer to the state's asserted interest in protecting minors. Hittner's second ruling, arriving after that remand and reaching the same constitutional conclusion, sharpens the conflict between the district court's free-speech analysis and the appellate court's prior reasoning.

The broader context here is a growing pipeline of similar cases. Paxton's commitment to an immediate appeal means the 5th Circuit will again review Hittner's findings. If the appellate panel reverses a second time, the case could proceed to the Supreme Court, where the boundaries of state authority to regulate drag performances and sexually oriented expression in the presence of minors remain unsettled at the federal level.

The case also sits within a wider landscape of state-level legislation targeting drag performances and LGBTQ+ expression. SB 12 was part of a wave of similar laws introduced across Republican-led states in 2023. Several of those statutes have faced parallel constitutional challenges. Hittner's ruling adds another federal district court decision to that body of case law, reinforcing the argument that laws singling out drag performances for restriction face steep First Amendment hurdles when their definitions cannot be cabined to unprotected speech.

What remains unresolved is whether the 5th Circuit, having already reversed Hittner once, will do so again or allow his reasoning to stand. The answer will determine whether SB 12 remains blocked or goes back into effect pending further review. Paxton's appeal ensures the litigation continues.