From Judge Kurt Engelhardt, joined by Judge Leslie Southwick in today’s Woodlands Pride, Inc. v. Paxton (Judge James Dennis, who had been a member of the original panel and had dissented in part, retired from service since then and thus didn’t participate):
A Texas law regulates sexually oriented performances on public property and in the presence of minors. A drag performer and others in the drag industry brought a pre-enforcement challenge, alleging that the law facially violates the First Amendment and is unconstitutionally void for vagueness. After a two-day bench trial, the district court agreed with the plaintiffs and permanently enjoined the appellants from enforcing the law. We vacate that injunction and remand….
Texas Senate Bill 12 (“S.B. 12”) regulates “sexually oriented performances” on public property and in the presence of minors. A “sexually oriented performance” is “a visual performance” that (1) features a performer who “is nude” or “engages in sexual conduct,” and (2) “appeals to the prurient interest in sex” [which means that the] {material, at a minimum, must be “in some sense erotic”}….
“Nude” means “entirely unclothed” or “clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the person is female, or any portion of the genitals or buttocks.” “Sexual conduct” means: (1) “the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation”; (2) “the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal”; (3) “the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals”; (4) “actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person”; or (5) “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.” …
[S.B. 12, among other things,] prohibits a “person who controls the premises of a commercial enterprise” from “allow[ing] a sexually oriented performance to be presented on the premises in the presence of an individual younger than 18 years of age.” … [It also prohibits a person from] engaging in a sexually oriented performance either (1) “on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child”; or (2) “in the presence of an individual younger than 18 years of age.” …
The court concluded that some of the plaintiffs—such as Woodlands Pride—lacked standing because their performances lacked nudity, actual or simulated sex, and the like, and thus weren’t even arguably covered by the law; other plaintiffs lacked standing for other reasons. But the court concluded that one plaintiff, 360 Queen, was arguably covered by the law, and did have standing:
Based on the evidence introduced at trial, 360 Queen’s performances arguably include proscribed conduct. The owner described one performance where a drag queen, who was wearing a “very revealing” breastplate pulsed the breastplate in front of people and put the breastplate in people’s faces.
This arguably constitutes “the exhibition of sexual gesticulations using … prosthetics that exaggerate … female sexual characteristics.” He also described a second performance where an audience member was invited to spank a performer’s buttocks. This arguably constitutes “actual contact or simulated contact occurring between one person and the buttocks … of another person.” Both performances are arguably “in some sense erotic,” and the owner testified that minors are sometimes present….
The court held that the district court hadn’t properly dealt with plaintiffs’ facial challenges to the law:
To determine if a law, on its face [as opposed to as applied to a particular plaintiff], violates the Free Speech Clause of the First Amendment, we must ask whether “a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” This inquiry begins with an assessment of the law’s scope: “What activities, by what actors,” does the law “prohibit or otherwise regulate?” We then determine which of the law’s applications violate the First Amendment. And finally, we take the unconstitutional applications and “measure them against the rest.” The law is not facially invalid unless its “unconstitutional applications substantially outweigh its constitutional ones.”
The district court did not conduct this analysis, nor did the parties brief the proper standard or adequately develop the record. {To be fair, the Supreme Court decided Moody after the parties briefed this appeal, and the Attorney General promptly filed a Rule 28(j) letter to notify us of its relevance. And while Moody espoused existing law, that existing law had frequently been overlooked.}
Consider, next, plaintiffs’ facial vagueness challenge. First Amendment overbreadth and Fourteenth Amendment vagueness claims overlap conceptually but remain distinct claims. The Supreme Court has explained two key rules concerning this conceptual overlap. First, facial vagueness challenges are permissible when constitutionally protected activity is implicated.
Second, when First Amendment rights are implicated, courts must apply a more stringent version of the substantive vagueness standard. A statute is unconstitutionally vague when it “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or “authorizes arbitrary or discriminatory enforcement.” In First Amendment contexts, we “will not hold that the ordinance is unconstitutionally vague on its face if ‘it is clear what the ordinance as a whole prohibits’ or if the ordinance ‘is surely valid [i.e. not vague] in the vast majority of its intended applications.'”
In concluding S.B. 12 is unconstitutionally vague on its face, the district court failed to clearly analyze the statute in terms of this still “daunting” facial vagueness standard. We are unequipped to undertake these tasks in the first instance, and remand for the district court to do so….
The court also briefly touched on one aspect of the substantive First Amendment question:
We have genuine doubt … 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. While nude dancing receives some constitutional protection, “intentional contact between a nude dancer and a bar patron is conduct beyond the expressive scope of the dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the physical contact occurs while in the course of protected activity does not bring it within the scope of the First Amendment.”
“It is possible to find some kernel of expression in almost every activity a person undertakes … but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” Even though the performers here are not fully nude, [the quoted] reasoning is persuasive.
This opinion is a replacement for a Nov. 5 panel opinion; the changes are nontrivial—for instance, the vagueness discussion has been added—but not worth cataloging, I think.
Note that I signed on to an amicus brief in the case supporting Woodlands Pride, though that brief focused on the substantive questions related to the laws validity, rather than the overbreadth and vagueness questions on which the Fifth Circuit focused.
