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Supreme Court Backs Government’s Ban on Drag Shows, Explained

Source: Flickr/Ralph Arvesen

The Supreme Court has decided to let a Texas university keep its ban on drag shows. Despite the fact that it goes against the Constitution. The decision was announced on Friday.

The Court’s ruling in Spectrum WT v. Wendler was short-just one line -and didn’t offer any explanation. While it’s only temporary, it means LGBTQ students in North Texas can’t exercise their First Amendment rights until further notice.

Two Villains In This Story

In this story, there are two main villains. First, there’s a university president who stopped drag shows on campus. Why? He allegedly thinks drag is sexist. The other villain is a judge known for being against LGBTQ rights.

Source: X/wtamuspectrum

Spectrum WT is a group of LGBTQ students at West Texas A&M University. They were planning their yearly drag show in March at a campus spot where other student groups held events.

University President Bans Drag Shows

Less than two weeks before the drag show was scheduled to happen, the university’s president, Walter Wendler, suddenly canceled it and banned drag performances on the campus.

Source: X/SmileBigTx

Wendler’s reason for the ban is quite strange, to say the least. He said that drag, a type of theater that mocks gender norms is “derisive, divisive, and demoralizing misogyny.” The show often has men dress up in feminine clothes and put some makeup on. He also likened it to blackface.

President Has To Follow First Amendment

Since West Texas A&M is a public university, President Wendler is like a government official who has to follow the First Amendment.

Source: YouTube/WTAM Channel

The Spectrum WT group wanted to have another drag show this month, but they can’t do it on campus while Wendler’s ban is still on. The Supreme Court’s decision is only for a short time, and the students have a good argument with the First Amendment. It probably won’t be long before the drag ban goes away.

Case To Appear Before Appeal Court Soon

The federal appeals court will soon hear the case, and it might cancel the ban. If not, the people suing might ask the Supreme Court to look at it again. But for now, the group won’t have their show on campus for the second year counting.

Source: Law Crime News/John Amis

Even if Wendler is right that making fun of female gender norms is sexist, the First Amendment still defends that kind of speech.

Exploring The First Amendment: Your Right To Speak Up

The First Amendment defends most speech, even if it’s offensive or hateful.

Source: X/@imillhiser

That’s why in 2011, the Supreme Court said a group known for being against gay people could protest at a Marine’s funeral with signs like “Thank God for Dead Soldiers.”

How Did We Get Here?

So how did Wendler’s drag ban end up at the highest court? Usually, these kinds of arguments get sorted out by lower courts without much fuss.

Source: X/EdScoop_news

The reason is that West Texas A&M is close to Amarillo, Texas. Cases in Amarillo go to the city’s only federal judge, Matthew Kacsmaryk. He was picked by Trump and has close connections to conservative religious groups. He’s most famous for trying to stop the abortion pill mifepristone.

Spectrum WT’s Journey Through The Courts

When Spectrum WT’s case went to Kacsmaryk, he did what people expected: He said no to their First Amendment argument. His decision was so far from normal legal reasoning that it hardly looked like a legal argument.

Source: The Dallas Morning News/ASSOCIATED PRESS

Then, Spectrum WT appealed Kacsmaryk’s decision to the United States Court of Appeals for the Fifth Circuit. This court mostly has Republican judges who support the MAGA movement.

Fifth Circuit Dragging Its Feet

The Fifth Circuit hasn’t said yes to Kacsmaryk’s decision, but they’ve been slow with this case. They said no to two requests to speed things up or give some temporary help against Kacsmaryk’s decision.

Source: X/SmileBigTx

Because of this, Spectrum WT has been stripped of its First Amendment rights for almost a year.

A Battle For First Amendment Rights

The Spectrum WT case is really important, and it’s about more than just one group’s drag show. With a judge in Amarillo who has strong beliefs and an appeals court that lets him ignore the Constitution, it’s like the Texas Panhandle doesn’t have First Amendment rights.

Source: X/FoulTerritoryTV

Kacsmaryk’s decision isn’t as powerful because other judges are not compelled to follow the decision of a federal trial judge.

Threat To Free Speech

But if the Fifth Circuit agrees with him, it will create a big problem for the First Amendment in Texas, Mississippi, and Louisiana. Those are the three states that the court covers.

Source: X/fouzi_s

Kacsmaryk’s opinion is hard to understand, but it seems like he gives three reasons why he thinks drag shows aren’t protected by the First Amendment. He says they’re not “expressive,” so he doesn’t see them as a type of speech.

Kacsmaryk’s Arguments Against Drag Shows

He says the First Amendment doesn’t cover drag shows because they include “sexualized expressive conduct” instead of “core political speech.”

Source: X/strujillo075

Also, he thinks universities can stop a “vulgar and lewd” show because it might hurt the school’s main job of educating.

Talking About Obscenity: Limits On Speech

It’s right that the government can stop what’s called “obscene” speech. And schools can act when speech seriously disrupts learning or causes big problems for others.

Source: X/AnnaEquality

But it takes a lot for something to be considered obscene. To be obscene, a performance has to show sexual stuff in a really offensive way and not have any real value in things like literature, art, politics, or science.

Kacsmaryk’s Argument Doesn’t Hold Water

Kacsmaryk doesn’t even try to say that drag shows meet the high standards for obscenity. And the thought that West Texas A&M students would be so shocked by a drag performance that they can’t focus in class is just silly and insulting to those students.

Source: X/SuretyFidelity

In any case, if the Fifth Circuit decides against Spectrum WT, the Supreme Court could still get involved later to bring back the First Amendment in the Texas Panhandle. But for now, in a lot of North Texas, there’s no free speech-or at least, you can’t really use the First Amendment if the area’s only federal judge doesn’t like what you’re saying.

What do you think?

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Mary Scrantin

Written by Mary Scrantin

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