The Volokh Conspiracy
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Fifth Circuit: West Texas A&M Violated First Amendment by Blocking Student Group's Drag Show
The decision drew a sharp dissent. [UPDATE: The headline originally said Texas A & M, and has since been corrected to West Texas A & M; my apologies.]
Some excerpts from today's long Fifth Circuit decision in Spectrum WT v. Wendler, written by Judge Leslie Southwick and joined by Judges James Dennis, which I think reaches the correct result (see the bottom of the post for my brief analysis):
Spectrum WT is an LGBT+ student organization at West Texas A&M University. It was in the last stages of organizing a drag show on campus when University President Walter Wendler canceled the show. The plaintiffs, Spectrum WT and two of its student-officers, sought a preliminary injunction on the grounds their free speech rights were violated. The district court denied the injunction, partly based on a holding that the First Amendment did not apply to the drag show. We REVERSE.
The court concluded that the First Amendment protects drag shows like it protects other theatrical productions:
We start with a Supreme Court opinion stating that "a narrow, succinctly articulable message is not a condition of constitutional protection" for expressive conduct…. Other Supreme Court opinions also have held that conduct within certain expressive settings and media is protected. For example, "live drama" implicates the First Amendment, given that "theater usually is the acting out—or singing out—of the written word, and frequently mixes speech with live action or conduct." Southeastern Promotions, Ltd. v. Conrad (1975). Films are no different. Joseph Burstyn, Inc. v. Wilson (1952). Violent video games also fall under First Amendment doctrine. Brown v. Ent. Merchs. Ass'n (2011)….
Having set out the relevant principles, we now examine the plaintiffs' intended drag show. It would have included costumed performers with stage names, occurred on a stage, and mixed the spoken and sung word with the show's physical components while songs played in the background. Cf. Southeastern Promotions (describing a production of Hair as protected expression)…. In the present dispute, it is evident that a message in support of LGBT+ rights was intended, which is a far clearer message than some of the examples of art identified in Hurley as protected by the First Amendment….
Whether conduct is communicative is [also] explained in part by societal and temporal context. A drag show can communicate a message of solidarity and support for the LGBT+ community. Drag shows—with performers dancing and speaking to music on stage in clothing associated with the opposite gender—mark a deliberate and theatrical subversion of gender-based expectations and signify support for those who feel burdened by such expectations….
The court then concluded that Legacy Hall was a "designated public forum"—government property voluntarily opened up for public access—and that speech there was protected against content-based speech restriction as much as in traditional public fora, such as parks. And the court concluded the drag show ban was a forbidden content-based restriction:
The restriction here describes impermissible expression "not in terms of time, place, and manner, but in terms of" content, i.e., a drag show. The ban abandons "the neutrality of time, place, and circumstance" and becomes "a concern about content." … President Wendler did not argue, either before the district court or on appeal, that restricting the intended drag show would survive strict scrutiny [i.e., the compelling interest test]. Based on the record before us, the district court erred in concluding that the plaintiffs were not substantially likely to succeed on the merits of their First Amendment claim.
Judge James Ho dissented; again, an excerpt from the long dissent:
Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez (2010).
I disagree with the Supreme Court's decision in CLS. But I'm bound to follow it. And I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS….
Members of the CLS chapter at the Hastings College of the Law sought to exercise their First Amendment right to associate with fellow believers who share their Biblical views on marriage and sexuality—just as politically affiliated student groups at Hastings have been allowed to associate with fellow partisans who share their ideological priors. But university officials chose to expel CLS—and only CLS—from campus. And the Supreme Court sided with university officials over CLS.
In doing so, the Court acknowledged that forcing an organization to accept unwelcome members "directly and immediately affects associational rights" ordinarily protected by the First Amendment. But the Court insisted that the First Amendment must be analyzed differently in "the educational context" and "in light of the special characteristics of the school environment." …
[U]ntil the Court itself overturns CLS, we're bound to follow it. And if we're bound to respect university officials when they regulate Christian groups over (contrived) concerns about discrimination, then we're surely bound to respect university officials when they regulate other groups over concerns about discrimination. We should apply the same First Amendment principles, whether the views are embraced or abhorred by cultural elites.
It would turn the First Amendment upside down to give greater protection to drag shows than devotional acts. That would violate the Constitution under the guise of enforcing it. It would discriminate not only on the basis of viewpoint, but on the basis of religion as well—in violation of not just the Free Speech Clause, but the Free Exercise Clause, too….
West Texas A&M President Walter Wendler concluded that drag shows are demeaning to women. As he explained in an open letter to the community, "WT endeavors to treat all people equally. Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent. Such conduct runs counter to the purpose of WT. A person or group should not attempt to elevate itself or a cause by mocking another person or group."
In opposing drag shows as derogatory towards women, Wendler compared them to blackface performances. "As a university president, I would not support 'blackface' performances on our campus …. I do not support any show, performance or artistic expression which denigrates others—in this case, women—for any reason."
Wendler is hardly the first member of the academy to regard drag shows as sexist—or to compare them to blackface performances, which are widely condemned as racist. As one scholar has observed, "the same arguments that forged the cultural consensus against blackface should forge a consensus against drag."
Drag shows "represent institutionalized male hostility to women." They "may be glamorous or comic, and presented by gay men or straight men," but they all "represent a continuing insult to women, as is apparent from the parallels between these performances and those of white performers of blackface minstrelsy."
In sum, "[d]rag is misogynistic, no matter who performs it." See also, e.g., Dr. Grace Barnes, Drag: a sexist caricature, or a fabulous art form?, The Guardian (Apr. 7, 2024) ("Drag can be compared to blackface and yellowface: those holding the reins of power utilise performance to mock those without power through a demeaning parody…. [I]t is … exclusionary, sexist and insulting to women."); Meghan Murphy, Why has drag escaped critique from feminists and the LGBTQ community?, Feminist Current (Apr. 25, 2014) ("Why do we despise performance in blackface and celebrate performance in drag?").
So it's not surprising that university officials across the country have opposed drag shows as demeaning to women. In IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993), for example, university administrators and student leaders were upset that a fraternity hosted an event in which men "dressed as caricatures of different types of women." Campus officials concluded that the event had "created a hostile learning environment for women" and was therefore "incompatible with the University's mission." One dean stated in an affidavit that the event "perpetuated derogatory … sexual stereotypes" and was "incompatible with, and destructive to, the University's mission of promoting diversity within its student body." The official worried that the event "sends a message to the student body and the community that we are not serious about hurtful and offensive behavior on campus." Hundreds of students protested, similarly condemning the "sexist implications of this event in which male members dressed as women." University officials ultimately sanctioned the fraternity for hosting the event. (The court's decision preceded, and thus was not bound by, the Supreme Court's decision in CLS.) …
The dissent also went on to argue that the forum in this case should be viewed as a limited public forum, where content-based but viewpoint-neutral restrictions are allowed (so long as they are reasonable), rather than a designated public forum.
I think that the majority reached the correct result, indeed regardless of whether the forum is viewed as a designated public forum or a limited public forum: If the rationale for the drag show ban is that drag shows are "sexist" (or, for that matter, if one adopts a different rationale that drag shows support improper views of gender), that just means that the ban is viewpoint-based, and thus unconstitutional in a limited public forum as well.
Indeed, the Court in CLS took pains to make clear that it upheld the policy there—which required student groups to accept all prospective members—because it viewed the policy as viewpoint-neutral, and that viewpoint-based campus speech restrictions would remain unconstitutional:
Although registered student groups must conform their conduct to the Law School's regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one. Cf. Rumsfeld v. FAIR (2006) ("As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say."). Today's decision thus continues this Court's tradition of "protect[ing] the freedom to express `the thought that we hate.'"
Likewise, even if drag shows' message is seen as "sexist" and therefore "discriminatory," CLS offers no basis for upholding the ban. Indeed, CLS began by making clear that viewpoint discrimination remains forbidden even in limited public fora:
In a series of decisions, this Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school-sponsored forums because of the groups' viewpoints. See Rosenberger v. Rector and Visitors of Univ. of Va. (1995) [a limited public forum case -EV]; Widmar v. Vincent (1981); Healy v. James (1972).
Spectrum WT is represented by Adam Steinbaugh, Conor Fitzpatrick, JT Morris, and Jeffrey Daniel Zeman (Foundation for Individual Rights and Expression). Note that I have consulted in the past for FIRE, as well as represented them pro bono and have been represented by them pro bono; but I didn't work with them on this case. Note also that I am an amicus and one of the cocounsel (together with Dale Carpenter) in a different drag show case that raised related issues, Woodlands Pride, Inc. v. Paxton.
