The Supreme Court on Friday rejected a request by an LGBTQ student group at a public university in Texas to let it perform a drag show on campus over the objections of the university’s president, who had refused to allow it.
In an emergency petition, the students said the president’s action violated the First Amendment.
As is the court’s custom when ruling on emergency matters, the judges’ brief order did not state reasons. No disagreements occurred.
Drag shows have increasingly become a target of the right, with some Republican-led states such as Florida and Tennessee seeking to curtail the performances.
The student group, Spectrum WT, first tried to sponsor the drag show, a charity event to raise money for suicide prevention, in March 2023. Walter Wendler, president of West Texas A&M University, canceled it, citing the Bible and other religious texts.
Drag Show, he said, “is mocking, divisive and demoralizing misogyny.”
He added: “A harmless drag show? Impossible.” Mr. Wendler went on to say that he would not condone such broadcasts “even when the law of the land appears to require it.”
The student group and two of its members sued, saying the president’s action was prior restraint and governmental opinion discrimination, both violations of the First Amendment. The group held the 2023 event off campus, began planning the 2024 show, and sought a court order allowing the show to take place on campus.
In September, Judge Matthew J. Kacsmaryk of the Federal District Court in Amarillo denied the students’ request for a preliminary injunction. He said it is “not clearly established that all drag shows are inherently expressive,” a claim in tension with First Amendment precedents protecting stage performances.
More generally, the Supreme Court said it is “a fundamental First Amendment principle” that “speech cannot be prohibited on the ground that it expresses offensive ideas.”
Justice Kacsmaryk suggested that the Supreme Court’s First Amendment jurisprudence had departed from what he said was the proper way of constitutional interpretation, based on “text, history and tradition” and contrary to the more categorical free speech protections that he said they had arisen. at the end of the 20th century.
Judge Kacsmaryk, who was appointed by President Donald J. Trump, issued other notable rulings. In 2023, he gained attention for bypassing the Food and Drug Administration’s approval of the abortion pill mifepristone, a decision that the Supreme Court put on hold and will hear arguments this month.
In 2021, the judge ruled that the Biden administration could not rescind a Trump-era immigration program that forced some asylum seekers who arrived at the southwest border to wait for approval in Mexico. The Supreme Court disagreed.
In the drag show case, the students asked the US Court of Appeals for the Fifth Circuit to entertain their appeal of Judge Kacsmaryk’s ruling, but the court refused, scheduling hearings for the week of April 29, after the scheduled performance.
The students then filed an emergency petition asking the Supreme Court to intervene. The court had earlier faced a drag show in November when it refused to revive a Florida law that barred children from what the law called “live adult performances.”
Mr. Wendler, represented by Ken Paxton, the Texas attorney general, urged the justices to deny the petition, saying the students were too slow to seek legal relief.
Mr. Wendler added that the controversy was unworthy of the court’s attention. “This case is about whether a fundraiser for a campus organization at a West Texas university can be held on campus or must be held down the road,” his interview said.
The First Amendment, he continued, had little to say on the matter, since drag shows are not “pure speech” but rather conduct that can be regulated. “President Wendler reasonably prohibited the expenditure of university funds on offensive and obscene conduct,” his interview said.
The students in the Texas case are represented by the Foundation for Civil Rights and Expression, which is particularly interested in protecting free speech on campus. In the student group’s emergency petition, the foundation’s lawyers wrote that the drag show ban was not an isolated incident.
“This would be bad enough if the problem were limited to the president of a small public university in the Texas Panhandle flouting what he knows is the mandate of the First Amendment,” the petition said. “But it is not. Public university and college officials nationwide from across the political spectrum are appointing themselves censors, separating what they consider ‘good’ from ‘bad’ expression on their campuses.”
