Fifth Circuit Reverses Lower Court, Shuts Down Texas University’s Illegal Drag Show Ban

Free Speech

from the well-there's-always-SCOTUS dept

In September 2023, Judge Matthew Kacsmaryk decided it was constitutional for a Texas university (West Texas A&M) to shut down a “PG-13” drag show. This was a decision he arrived at despite this being said (on the public record!) by the university official instituting the drag show ban:

In the statement to the WTAMU community yesterday, [WATMU President Walter] Wendler said the university “will not host” the March 31 event because, in his view, drag shows “denigrate and demean women” and that, in his view, “being created in God’s image is the basis of Natural Law.” Wendler said his beliefs about Christianity, and other religions including Buddhism and Judaism, as well as his views on feminism, blackface, quinceañeras, and Newton’s Third Law of Motion all shaped his decision to cancel the event — “even if the law of the land appears to require” WTAMU to host it.

(Un)holy shit. Wow. That is… a lot of stuff.

First, there’s the university president’s insistence that “natural laws” apparently handed down by a “God” are what’s actually in play here, rather than the actual laws handed down by the government he now works for.

And we can all assume Walter Wendler is massively wrong when it comes to views on feminism, blackface, the massively profitable quinceañera industry (which is rivaled only by the bar mitzvah industry here in the United States), as well as religions he doesn’t actually adhere to. But I’m extremely curious about his citation of Newton’s Third Law in support of his bigoted (and admittedly unlawful!) banning of drag shows at his university.

Here it is. Enjoy.

The WT community should live by the Golden Rule. As a Christian, I personally learned this in the book of Matthew, “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” Buddhism expresses it this way: “Hurt not others with that which pains yourself.” Judaism states, “What you yourself hate, do to no man.” The law of reciprocity is at work in every known religion and society on the planet. Colloquially speaking, it is a manifestation of Newton’s Third Law of Motion, “For every action, there is an equal and opposite reaction.”

Oh. An “eye for an eye” or whatever — the sort of thing Jesus declared to be ultimately useless but still remains the sort of vindictive umbrage wielded by people who say things like “I believe every human being is created in the image of God” before declaring which of these images of God are allowed to access their constitutional rights.

Despite the self-owns performed by Walter Wendler, the district court allowed the ban on drag shows to continue, (irrationally) reasoning that drag shows simply weren’t politically expressive enough to count as free speech:

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.

Who would arrive at such an insane conclusion? Well, it would be a judge who’s more Walter Wendler than a bulwark against unconstitutional abuses of power. It would be a judge who’s every bit as bigoted as the man they chose to support by ignoring decades of free speech precedent.

Here’s a bit of Judge Kacsmaryk’s bio, courtesy of Slate’s Mark Stern:

Before joining the bench, the judge worked as an anti-abortion activist and served at the hard-right First Liberty Institute, which opposes abortion, In vitro fertilization, contraception, LGBTQ+ equality, and other supposed products of the “sexual revolution.” 

That explains why this judge ruled the way he did.

The good news is that even the Fifth Circuit isn’t willing to sign off on this judge’s prejudices. As FIRE (which handled the lawsuit against WTMU) points out in its press release announcing this win, it’s expression that matters when it comes to First Amendment issues, not whether or not the disputed expression is “political.”

The majority opinion from Judge Leslie H. Southwick found a substantial likelihood that Spectrum WT’s First Amendment claims would prevail on the merits.

“Because theatrical performances plainly involve expressive conduct within the protection of the First Amendment, and because we find the plaintiffs’ drag show is protected expression,” the Fifth Circuit held Wendler’s censorship failed to pass constitutional muster. 

This is something the university president even admitted was likely the case before instituting a ban even he believed was probably illegal. The Fifth Circuit doesn’t have any sympathy for the college’s case, especially as it has been represented by school president Walter Whateverthefuck (née Wendler).

The decision [PDF] runs only 39 pages, recounting the stuff that generated this appeal before (even more swiftly) rejecting the lower court’s reasoning and blocking Wendler from forcing his university to continue engaging in an unconstitutional drag show ban.

First, it shuts down the lower court’s rationale that something must be explicitly “political” or “so artistic no one would dare doubt its artistic merit” (I’m paraphrasing the last part) to be protected by the First Amendment.

We find no support in this court’s caselaw for the proposition that nonspeech conduct must be a work of fine art to receive First Amendment protection if it does not communicate a particularized message. Any such suggestion would be at odds with the guidance provided by the Supreme Court.

In addition, it was clear this particular drag show was communicating something beyond the vagaries of whatever the average drag show communicates. This one — in particular — had a deeper meaning:

This does not mean, though, that drag shows as described here fail to communicate such a message of support [for LGBTQ+ people]. Some do. The question is whether the plaintiffs’ intended drag show would have communicated a message. We consider context dispositive. The viewers of the drag show would have been ticketed audience members attending a performance sponsored by LGBT+ student organizations and designed to raise funds for an LGBT+ suicide prevention charity. Against this backdrop, the message sent by parading on a theater stage in the attire of the opposite sex would have been unmistakable.

The end result is an injunction blocking this bigoted school president’s unilateral ban of creative expression he personally doesn’t like. Without a doubt, this decision will be appealed because the Supreme Court is at least 5/4th-Trump hand puppets at this point in time. And, of course, Trump-appointee James Chien-Yue Ho is there to lay the groundwork for the inevitable appeal with his extremely stupid dissenting opinion that leads off with this:

Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez, 561 U.S. 661 (2010).

I disagree with the Supreme Court’s decision in CLS. But I’m bound to follow it. And I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.

Insane. First, it was only a single university official who claimed drag shows were like blackface performances, and he said this in support of his blocking of the performance, even as he openly admitted his actions were most likely unconstitutional.

Drawing a line from drag shows to blackface to religious activities is intellectual dishonesty at its finest. No one in their right mind thinks drag shows are as offensive as blackface performances. And no one but this particular Judge Ho would seek to connect three disparate dots with a single sentence that also adds the phrase “cultural elites” to a document that should never contain a tacit admission of political alignment. Only the far right (which is all of the GOP at this point) uses the phrase “cultural elites” to characterize enemies it can’t better describe as anything but “woke.”

Ho’s use of this phrase in this context suggests the decline of blackface performance popularity is somehow the fault of cultural elites, who would rather see drag shows than Bible studies hosted at US universities. It also aligns with the current administration, whose main complaint with history museums and Park Service National Monuments is that they continue to highlight how awful slavery was, while the current administration would rather everyone just pay more attention to the inherent greatness of white people.

But the end result is what stands for the moment, Judge C. Ho’s subservient dissent notwithstanding. Banning artistic expression just because you personally dislike it should never be an option for public entities. This university president is now little more than a sunk cost the rest of the school should have the willingness to walk away from before he does any more damage to the school’s reputation, much less its bottom line.

Filed Under: 1st amendment, 5th circuit, drag show, free speech, matthew kacsmaryk, walter wendler