The Supreme Court allows the government to ban drag shows, at least for now

The Supreme Court will allow a public Texas university’s unconstitutional ban on drag shows to remain in effect, in a decision announced Friday.

The Court’s decision in Spectrum WT v. Wendler is just one line long and offers no explanation. The decision is also only temporary, but it effectively means that LGBTQ college students in North Texas are not allowed to exercise their First Amendment rights for an indefinite period of time.

This is a story with two very clear villains. One is a university president who banned drag shows on campus, allegedly because he believes that drag is sexist. The other is a notoriously anti-LGBTQ judge.

Spectrum WT is an LGBTQ student organization at West Texas A&M University. It was supposed to hold its annual drag show last March at a campus venue that, according to the organization’s lawyers, hosts concerts, beauty pageants, political events, and other performances hosted by student groups.

Less than two weeks before the drag show was supposed to take place, the university’s president, Walter Wendler, abruptly canceled it and announced that he was banning drag performances from campus.

Wendler’s stated reason for the ban is, to say the least, unusual. He claimed that drag, a kind of theater that satirizes gender norms and often features men dressed in conventionally feminine clothing and makeup, is “derisive, divisive and demoralizing misogyny.” He also likened it to blackface.

But West Texas A&M is a public university, so Wendler is a government official who is bound by the First Amendment.

Spectrum WT had wanted to hold another drag show this month, but can’t hold it on campus so long as Wendler’s drag ban is in place. Friday’s decision from the Supreme Court is only temporary, and the students have such a strong case under the First Amendment that it is unlikely the drag ban will remain in effect forever.

The case will be heard soon by a federal appeals court, which could still strike down the ban. If it does not, the plaintiffs may then seek review from the Supreme Court once again. But the practical effect of Friday’s decision is that the group will not be able to hold its show on campus for the second year in a row.

Even if Wendler were correct that a theater performance that lampoons female gender norms is inherently sexist, the First Amendment still protects sexist speech. In fact, it protects nearly all speech that is offensive, obnoxious, or even hateful. Hence the Supreme Court’s 2011 decision that members of a notoriously anti-gay church could stand outside a fallen Marine’s funeral holding signs with messages like “Thank God for Dead Soldiers.”

Indeed, in its brief to the justices, Spectrum WT has pointed to a federal appeals court decision that held that a fraternity was protected by the First Amendment when it dressed several male students in women’s clothing and held an “ugly woman contest.” One of these men wore actual blackface, dressing as “an offensive caricature of a black woman.”

So how did Wendler’s obviously unconstitutional drag ban wind up in front of the highest court in the nation? This, after all, is the very sort of one-sided legal dispute that lower courts typically resolve with relatively little drama.

The answer is that West Texas A&M is located just outside of Amarillo, Texas. And cases brought in Amarillo’s federal courthouse are all heard by the city’s sole federal judge, Matthew Kacsmaryk. Kacsmaryk is a Trump appointee with strong ties to the religious right. He’s best known for his stalled attempt to ban the abortion drug mifepristone.

When Spectrum WT’s lawsuit against Wendler came before Kacsmaryk, he did what everyone familiar with his record already knew he was going to do: He handed down a decision rejecting the group’s First Amendment claims in an opinion that takes such extraordinary liberties with the Supreme Court’s precedents that it barely resembles a legal argument.

Kacsmaryk’s decisions, meanwhile, appeal to the United States Court of Appeals for the Fifth Circuit, a court dominated by Republicans closely aligned with the MAGA movement.

The Fifth Circuit has not affirmed Kacsmaryk’s decision, but it has dragged its feet on this case as much as possible, rejecting two requests to expedite the case or to provide some sort of temporary relief from Kacsmaryk’s decision. The result is that Spectrum WT has been stripped of its First Amendment rights for nearly a year.

Kacsmaryk’s flawed reasoning in the drag ban case, briefly explained

The stakes in the Spectrum WT case are quite high — and they go far beyond the question of whether a single student group can put on an annual drag show. The combination of a deeply ideological trial judge in Amarillo and an appeals court that enables his disregard for the Constitution has transformed the Texas Panhandle into a First Amendment-free zone.

The impact of Kacsmaryk’s decision is mitigated somewhat because a federal trial judge’s decisions are not binding on other judges. But if the Fifth Circuit upholds his ruling, that would carve a significant hole in the First Amendment throughout Texas, Mississippi, and Louisiana, the three states overseen by that circuit.

Kacsmaryk’s opinion is difficult to parse, but he appears to give three separate reasons he thinks a drag performance is not protected by the First Amendment. He suggests that drag shows are not “expressive” and therefore do not count as a form of speech. He claims that the First Amendment does not apply to drag shows because they involve “sexualized expressive conduct” and not “core political speech.” And he claims that universities have broad authority to ban a “vulgar and lewd” performance that would “undermine the school’s basic educational mission.”

Let’s start with his first argument, that a theatrical performance is not “expressive.” To describe this argument is to refute it. And the Supreme Court has, as one would expect, previously rejected the claim that dramatic or comedic performances are not speech.

In Southeastern Promotions v. Conrad (1975), a case strikingly similar to Spectrum WT, government officials tried to block a performance of the musical Hair, a show that features nudity. The Supreme Court determined that the attempt to censor the musical was a “prior restraint” — an attempt to block speech before it is uttered, something the First Amendment almost never allows.

The Court’s opinion also makes it crystal clear that theater is protected speech. “Only if we were to conclude that live drama is unprotected by the First Amendment — or subject to a totally different standard from that applied to other forms of expression — could we possibly find no prior restraint here,” Justice Harry Blackman wrote for his Court. But First Amendment principles “make freedom of expression the rule,” and, he noted, “there is no justification in this case for making an exception to that rule.”

Wendler’s actions are no different from the prior restraint in Conrad. In both cases, a government official tried to block a theatrical performance before it took place.

There is also no merit to Kacsmaryk’s suggestion that drag performances are not protected speech because they are “sexualized” rather than “political.”

The Supreme Court held in Schad v. Borough of Mount Ephraim (1981) that “entertainment, as well as political and ideological speech, is protected” by the First Amendment. And in Brown v. Entertainment Merchants Association (2011), it warned that “it is difficult to distinguish politics from entertainment, and dangerous to try.” Even the most prurient theatrical performances can mingle political messages with less high-minded ideas. And this is certainly true of a drag show.

Spectrum WT, after all, is an LGBTQ pride organization that wishes to put on a celebration of a core aspect of gay culture in one of the most conservative regions in the country, and against the wishes of at least two powerful government officials who have done everything in their power to censor this celebration. How can anyone conclude that this performance has no political content?

That leaves us with Kacsmaryk’s reasoning that a university may ban a “‘vulgar and lewd’ performance that would ‘undermine the school’s basic educational mission.’”

The idea that lewd, sexualized, or otherwise titillating performances undermine a university’s “basic educational mission” will come as a shock to pretty much anyone who has ever attended college. Taken to an extreme, Kacsmaryk’s rule would allow a public university president to ban a performance of Shakespeare’s A Midsummer Night’s Dream, which features a sexual encounter between a woman and a man who has been transformed into a donkey. Indeed, it could potentially endanger any Shakespearean play in which two characters make “the beast with two backs.”

It is true that the government may ban what is known as “obscene” speech. And schools may sanction speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” But the standard for obscenity is very high. To qualify as obscene, a performance must “portray sexual conduct in a patently offensive way” and in a manner that does “not have serious literary, artistic, political, or scientific value.”

Kacsmaryk does not even attempt to argue that drag shows meet the high bar for obscenity. And the idea that West Texas A&M students will be so gobsmacked by a drag performance that their ability to focus on their classwork will be disrupted is both absurd and insulting to those students.

So why did the Supreme Court deny relief in such a clear-cut case?

In the Supreme Court, Wendler is represented by Texas Republican Attorney General Ken Paxton’s office, and their brief leaned heavily into procedural arguments that are irrelevant to the question of whether Wendler’s actions violated the First Amendment. That’s not surprising. Lawyers often look for ways to dispose of a case on procedural grounds when they have no good arguments on the merits of the case.

That said, at least some of these procedural arguments are fairly persuasive — or, at least, they would have been persuasive a decade ago.

Team Paxton’s strongest argument is that the Supreme Court is supposed to be reluctant to do anything on its shadow docket, a mix of emergency motions and other matters that the Court decides on a tight timeframe. As the Court said in Respect Maine PAC v. McKee (2010), a party asking the justices to intervene when lower courts refused to do so “demands a significantly higher justification” than other cases in which litigants seek relief from the Court.

It is likely that the Supreme Court denied relief to Spectrum WT at least in part because the justices believed that they should not act on their shadow docket and should wait until the Fifth Circuit issues its opinion in the case.

But while Paxton is correct that the Supreme Court is supposed to be reluctant to act on its shadow docket, it hasn’t shown much reluctance in recent years.

Before former President Donald Trump took office, the Court was so averse to granting shadow docket relief that lawyers typically avoided asking for it. As University of Texas law professor Stephen Vladeck wrote in a 2019 paper, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.”

After Trump took office, however, the Republican administration started routinely seeking such relief from the Supreme Court’s GOP-appointed majority, filing 10 such requests in the Court’s 2018 term alone. And the Court rewarded this behavior: Vladeck found that the Trump administration achieved a full or partial victory in about two-thirds of cases where it asked the justices to block a lower court opinion on their shadow docket.

The Court also started handing down major precedential opinions on its shadow docket — Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a shadow docket case, was arguably the most consequential religion decision of the last 30 years. That said, it has backed away from handing down so many significant shadow docket decisions since Justice Amy Coney Barrett published a 2021 opinion warning that her Court was deciding too many cases “on a short fuse without benefit of full briefing and oral argument.”

In any event, Spectrum WT’s request for a shadow docket order was always unlikely to be granted. This is a very conservative Court, with six Republican appointees. So the likelihood that these justices would go out of their way to protect queer college students was very small.

In the likely event that the Fifth Circuit rules against Spectrum WT, the Supreme Court might still step in at some point in the future to reinstate the First Amendment in the Texas Panhandle. Still, for as long as this case drags on, in much of North Texas, there is no free speech — or, at least, no way to enforce the First Amendment if the region’s sole federal judge doesn’t approve of what you have to say.