Federal Judge Says Fuck The 1st Amendment While Upholding Public University’s Drag Show Ban
Most laws and policies banning drag shows are experiencing swift judicial blowback thanks to their obvious regulation of expressive speech. Some legislators have attempted to work around this expected roadblock to oppression by avoiding any mention of drag shows or drag performers when crafting unconstitutional laws, instead pretending they're simply strengthening existing obscenity laws.
None of these tactics have worked. At least, up until now. It turns out you don't need to worry too much about the Constitution if you can find a bigot manning the bench. That's the case here, where federal judge Matthew Kacsmaryk has used his personal animus to find a way to silence people he simply doesn't like.
Slate's Mark Joseph Stern has compiled some useful background info on Judge Kacsmaryk in his coverage of this otherwise inexplicable decision [PDF] that says the First Amendment does not apply to expressive speech... not as long as that speech involves drag performers.
Before joining the bench, the judge worked asan anti-abortion activistand served at the hard-rightFirst Liberty Institute, which opposes abortion, In vitro fertilization, contraception, LGBTQ+ equality, and other supposed products of the sexual revolution."
That background - along with the judge's personal sexual preferences - bleed into his decision, turning this from an attempt to seek redress from a neutral magistrate to a judge deciding things he doesn't like don't deserve Constitutional protection. As Stern notes, the judge cited some highly questionable sources when shutting down the plaintiff's argument that the planned performance at a public university would be, at best, PG-13" and therefore unlikely to be considered indecent" by the adults in attendance.
[Judge Kacsmaryk] complained repeatedly about biological men performing' while dressed in attire stereotypically associated with women," which he denounced as inherently offensive and arguably obscene.
To support this last proposition, Kacsmaryk favorably citedGays Against Groomers, quoting its claim that drag shows involve the sexualization and indoctrination of children." Ahate groupthat stokes violence and fury, Gays Against Groomers endorsesthe malicious falsehoodthat transgender people and drag queens seek to groom," sexualize," and recruit" children. It alsosupports gag lawsthat force LGBTQ+ teachers to remain closeted at school. In addition, Kacsmaryk cited anarticleby right-wing agitator Christopher Rufo alleging that drag promotes perversions" that were born in the sex dungeons of San Francisco" and now seek to corrupt children.
We're getting used to judicial insanity from this particular circuit, especially from judges presiding over Texas federal courts. The Fifth Circuit Court of Appeals has its own problems, so the odds of a decision like this being overturned on appeal are lower than they would be elsewhere in the nation.
The plaintiffs were planning to host a couple of drag-related events on campus, including one that was open to children accompanied by an adult." These were immediately shut down by West Texas A&M president Walter Wendler, who sent a letter stating the college will not host a drag show on campus." He also went on to compare drag shows to blackface" and called them demoralizing misogyny" that denigrates women."
That insanity prompted this lawsuit, which has now led to further insanity thanks to a federal judge who has stacked his own personal feelings deck against the plaintiffs. According to the judge, drag performances are not protected speech because they simply aren't political" enough.
Because men dressed in attire stereotypically associated with women is not overtly political" in a category of performative conduct that runs the gamut of transvestism - e.g., onnagata in kabuki, Sigma Chi fraternity brothers in a distasteful ugly woman" contest, jogappa priests worshiping Yellamma, and Matt Damon depicting a Yale University thespian in The Good Shepherd" - it is not clearly established that all drag shows are inherently expressive as defined in Johnson, 491 U.S. at 406.
The decision also applies rulings dealing with restricted expression in public schools (elementary, middle school, etc.) where everyone affected is a minor to one where a majority of those in attendance would be legal adults and any children attending would be accompanied by their legal adult guardian. Warping case law and adding for the children" language even the university president didn't use, the judge arrives at this conclusion - one that includes a cheap shot at those who actually respect the Constitution.
Finally, Plaintiffs cite the Supreme Court's decision in Widmar v. Vincent, 454 U.S. 263 (1981). This too misses the mark. Widmar only addressed content-based exclusions of religious speech in an open forum" on campus. It does not clearly establish a right to conduct a drag show on campus in a yet-to-be-determined forum - though First Amendment practitioners rarely miss an opportunity to drop a Widmar quote out of context.
Plaintiffs thus fail to clearly establish a First Amendment right to conduct a PG-13" drag show with performers like Miss Myka at a designated or limited time public forum on a university campus in front of children. None of these cases involved drag shows of the type that have become increasingly controversial. And, except for Conrad, none of these involved potentially lewd conduct. Nor are they especially helpful in addressing the limits of reasonable time, place, and manner" restrictions on indecent conduct or ways schools might justify restrictions on protected forms of expression.
That terminates the claims against the school president, at least for the time being. And this court - via Judge Kacsmaryk - has made it clear certain forms of expressive speech will never be considered expressive enough to be worthy of constitutional protection.