The Supreme Court of the United States (SCOTUS) has declined to overturn the ruling of a far-right federal judge in north Texas upholding a college campus' drag show ban, meaning students there have effectively had their First Amendment rights curtailed for more than a year.
In a one-sentence ruling handed down Friday in the Spectrum WT v. Wendler case, the Court wrote, "the application for writ of injunction pending appeal presented to Justice [Samuel] Alito an by him referred to the Court is denied." This means that US District Judge Matthew Kacsmaryk's (an appointee of former President Donald Trump) decision upholding West Texas A&M University president Walter Wendler's ban on drag performances will stand, pending appeal to the US 5th Circuit Court of Appeals.
As Vox's Ian Millhiser explained, Wendler justified his ban by saying drag shows are "“derisive, divisive and demoralizing misogyny,” and compared it to blackface. Of course, while drag is meant as a humorous critique of traditional gender roles, blackface — in which white performers wear dark makeup and enact racial stereotypes — has been roundly criticized by all sides as racist and highly offensive.
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Millhiser asserted that Wendler's ban on campus drag shows is unconstitutional, as north Texas A&M is a public university and is bound to abide by the First Amendment, which guarantees freedom of expression for all Americans. But as the US District Judge for the Northern District of Texas, Kacsmaryk — a former Christian right activist widely regarded as one of the most conservative judges in the US — is the sole federal judge in north Texas, making him the arbiter of whether the drag ban conflicts with the First Amendment. Kacsmaryk is known in particular for his 2022 decision overturning FDA approval of the abortion drug Mifepristone (which was eventually tossed out by the 5th Circuit).
Plaintiff Spectrum WT, which is a campus-based LGBTQ+ equality group, is appealing to the 5th Circuit. But like the Northern District of Texas, the 5th Circuit is regarded as the most conservative judicial circuit in the US, packed with numerous far-right judges appointed by Presidents George W. Bush and Donald Trump. And should the 5th Circuit uphold the drag ban, it would by default affect freedom of expression in Louisiana, Missisippi and Texas (the three states under the 5th Circuit's jurisdiction).
"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," Millhiser wrote. "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.'"
Millhiser roundly criticized Kacsmaryk's conclusion that drag performances are not "expressive" and thus are not protected by the First Amendment, as expression is the core element of drag (in which male performers don feminine clothing and adopt an exaggerated female persona). He then pointed out that the "sexualized expressive conduct" doesn't meet previously established bars for obscenity (which Millhiser said is "very high"). He also described Kacsmaryk's assertion that drag performances "undermine" the "educational mission" of schools is overbroad, as it could technically be applied to any theatrical performance, including 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."
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"Kacsmaryk does not even attempt to argue that drag shows meet the high bar for obscenity," Millhiser wrote. "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."
If the 5th Circuit upholds Kacsmaryk's ruling, Spectrum WT can still appeal to the full Supreme Court. But because the Court has a 6-3 conservative majority, the fate of such an appeal remains unknown — and that's even assuming SCOTUS would grant Spectrum a writ of certiorari accepting the case.
"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," Millhiser wrote. "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."
Click here to read Millhiser's analysis on Vox.com in full.
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