Fifth Circuit Vacates Injunction Against Texas Sexually Oriented Performance Law on Standing Grounds, Remands First Amendment Question

The decision

On November 6, 2025, the U.S. Court of Appeals for the Fifth Circuit vacated, as to the appealing defendants, a permanent injunction barring Texas officials from enforcing Senate Bill 12, which regulates “sexually oriented performances” on public property and in the presence of minors. The court held that 360 Queen Entertainment, LLC, established standing to seek an injunction against the Attorney General of Texas, who enforces Section One of the law, and that the other plaintiffs did not establish standing against the remaining appellants; it stated that it need not decide whether the two remaining plaintiffs have standing against the Attorney General. The court did not decide whether Section One violates the First Amendment, remanding for the district court to apply Moody v. NetChoice, LLC (2024) in the first instance.

Background

S.B. 12 defines a “sexually oriented performance” as “a visual performance” that features a performer who “is nude” or “engages in sexual conduct,” and that “appeals to the prurient interest in sex.” The listed categories of sexual conduct include actual or simulated contact with another person’s buttocks, breast or genitals, and “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.” Section One prohibits a “person who controls the premises of a commercial enterprise” from allowing such a performance in the presence of a person under 18 and is enforced by the Attorney General; Section Two authorizes municipalities and counties to regulate such performances but bars them from authorizing performances on public property or before minors; Section Three creates a Class A misdemeanor enforced by district and county attorneys.

Five plaintiffs—The Woodlands Pride, Inc.; Abilene Pride Alliance; 360 Queen Entertainment, LLC; Extragrams LLC; and a performer proceeding under the court-approved pseudonym Brigitte Bandit—brought a pre-enforcement suit under 42 U.S.C. § 1983 alleging that the law facially violates the First and Fourteenth Amendments. After a two-day bench trial, the district court held S.B. 12 facially unconstitutional and enjoined the Attorney General, the City of Abilene, Taylor County, Montgomery County and four district attorneys. All but the Travis and Bexar county district attorneys appealed. The opinion notes that the plaintiffs call the law a “drag ban” and that the statute’s text does not include the word “drag.”

The court’s reasoning

The standing framework

The opinion, by Judge Kurt D. Engelhardt, stated that standing “is not dispensed in gross” and that, for injunctive relief, at least one plaintiff must have standing as to each defendant. In a pre-enforcement free speech challenge, a plaintiff must show an intent to engage in conduct arguably affected with a constitutional interest, that the conduct is arguably proscribed by the statute, and a credible threat of prosecution; because the case reached final judgment, standing had to be supported by the trial evidence. The court read “prurient interest in sex” as a term of art from the Supreme Court’s obscenity cases and, citing Ashcroft v. ACLU, stated that such material must at a minimum be “in some sense erotic.”

Woodlands Pride and Abilene Pride

Woodlands Pride hosts an annual Montgomery County festival attended by children; its representative described the drag performances as family friendly, with no nudity or simulated sexual acts, though performers dance in a conga line with contact including a “portion of their buttocks” and may “twerk.” The court held that vendors handing out condoms and lubricant are not “a visual performance” and are not “performers,” and that even if contact with another performer’s buttocks is arguably sexual conduct, it is not proscribed unless it appeals to the prurient interest in sex, which the trial evidence did not show. It concluded: “Because Woodlands Pride does not intend to engage in conduct that is arguably proscribed by S.B. 12, it does not have standing to seek an injunction against any of the appellants.”

Abilene Pride, in Taylor County, hosts all-ages events at which performers wear breastplates, hip pads and packers and hug or hip-bump audience members. The court held that protests at past events have no bearing on whether the statute arguably proscribes the performances, and that front-facing hugs and accidental bumping “are common interactions that do not inherently appeal to the prurient interest in sex.” It reached the same conclusion on standing.

360 Queen

360 Queen books drag performers on the patio of a San Antonio restaurant. Its owner testified that it controls the patio on show days, sells tickets and decides who enters, and that although children are not typically admitted, exceptions have been made. He described a performance in which a performer wore a “very revealing” breastplate and “put her chest in front of people’s faces,” and another in which a performer invited a customer to spank her.

The court stated: “Based on the evidence introduced at trial, 360 Queen’s performances arguably include proscribed conduct.” The breastplate performance arguably fell within the prosthetics provision and the spanking invitation arguably constituted contact with the buttocks of another person; both were arguably “in some sense erotic,” and minors were sometimes present. Because 360 Queen performs only in San Antonio, the court held its injury was not traceable to Abilene, the counties or the district attorney appellants, leaving the Attorney General as the only appellant against which it could have standing.

The Attorney General argued that 360 Queen does not “control” the premises because a third party owns the restaurant. Citing Black’s Law Dictionary, the court held that control is not necessarily synonymous with ownership and that the “arguably proscribed” standard does not require the plaintiff’s interpretation to be the best one. A footnote rejected his related sovereign-immunity argument, holding that he has sole authority to recover civil penalties and obtain injunctions under Section One and so satisfies Ex parte Young.

Because nude dancing generally constitutes expressive conduct, the court held the performances were arguably affected with a constitutional interest, while stating in a footnote, citing Hang On, Inc. v. City of Arlington: “We have genuine doubt, however, that pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected—especially in the presence of minors.” It assumed a credible threat of enforcement because the law is non-moribund and no contrary evidence was offered, and found traceability and redressability satisfied. It added that “we need not determine whether the remaining two plaintiffs have standing to seek an injunction against the Attorney General.”

Extragrams and Bandit

Extragrams performs primarily in Austin and in several other cities, none in Abilene or in Taylor or Montgomery County, and the court held its injury was not traceable to the remaining appellants. Bandit, an Austin-based performer, had not performed or expressed an intent to perform in Montgomery County; although she testified to a scheduled Abilene performance, her testimony included no information about it, and she stressed that her sexual performances are restricted to adult audiences. The court held she lacked standing against the remaining appellants.

The facial challenge

With standing established only against the Attorney General, who enforces only Section One, the court stated that the sole remaining issue was whether Section One facially violates the First Amendment. Quoting Moody, it described facial challenges as “hard to win” and set out the framework: assess the law’s scope, identify unconstitutional applications, and measure them against the rest. The court stated: “The district court did not conduct this analysis, nor did the parties brief the proper standard or adequately develop the record.” Noting that it is “a court of review, not first view,” the court remanded.

Separate opinions

Judge James L. Dennis concurred in the judgment in part and dissented in part. He agreed that 360 Queen has standing against the Attorney General, that the Pride organizations lack standing against Montgomery and Taylor counties, that sovereign immunity does not bar the claims against the Attorney General, and that remand under Moody is appropriate. He otherwise dissented, writing that the majority “misapprehends the governing pre-enforcement standing principles, disregards unrebutted testimony and record evidence,” and, reviewing the legislative history: “The legislative record leaves little doubt that S.B. 12 was crafted with the specific aim of restricting drag performances.” He would have found that the plaintiffs’ costuming, prosthetics, choreography and possible wardrobe malfunctions arguably fall within the statute’s undefined terms, that the defendants offered no compelling evidence rebutting a credible threat of enforcement, and that Abilene Pride’s injury is traceable to the City of Abilene and both Pride organizations’ injuries to the two district attorneys. On remedy, he wrote that “a limited remand without vacatur would suffice,” and that the vacatur does not disturb the injunction as to the two non-appealing district attorneys. He characterized the majority’s “genuine doubt” footnote as dictum, writing: “That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand.”

Status

The court vacated the injunction against the appellants and remanded, instructing the district court to “(1) dismiss the claims against Brett Ligon, James Hicks, Montgomery County, Taylor County, and the City of Abilene; and (2) reconsider the plaintiffs’ facial challenge to Section One of S.B. 12 under the Moody framework.” The pending motion for stay pending appeal was denied as moot. The majority opinion does not state whether the dismissals are with or without prejudice; Judge Dennis’s opinion states that the claims against those defendants should be dismissed without prejudice. Courthouse News Service and the North Dallas Gazette headlined the decision as upholding or reinstating the law.