Geese, Ganders, and Pterodactyls: Amicus Brief in Fifth Circuit En Banc Rehearing of West Texas A&M Drag Ban Case

From a brief filed yesterday by Joshua J. Bennett (Baker & Hostetler LLP) on behalf of Dale Carpenter, the Cato Institute, and me in Spectrum WT v. Wendler (for the panel majority and dissent, see here):

Summary of Argument

When the government operates a place or program that allows a wide range of private speech, it may not discriminate among speakers or groups based on their viewpoints. That is true even when the place or program is a limited public forum or nonpublic forum rather than a traditional or designated public forum. The panel majority correctly held that (1) the canceled drag show was speech protected by the First Amendment, and (2) President Wendler violated the First Amendment when he cited the show's "objectionable message" (alleged sexism) to justify its cancelation and without trying to satisfy strict scrutiny. That second conclusion holds true no matter how the forum (Legacy Hall) is classified, whether as a designated public forum, as the panel held; a limited public forum (as the panel dissent argues, Spectrum WT v. Wendler, 151 F.4th 714, 738 (5th Cir. 2025) (Ho, J. dissenting)); or even a nonpublic forum. Viewpoint discrimination is presumptively unconstitutional in each such forum.

Not even the panel dissent takes issue with the panel majority's first conclusion. Citing the Supreme Court's decision in Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ("CLS"), the dissent instead argues for application of the Rule of Goose and Gander. Because, in the dissent's view, CLS permits universities to expel Christian legal societies from limited public fora on campus (if those societies won't agree to open their membership to all comers in exchange for the university's subsidy), "a university may limit use of its facilities to protect the dignity and safety of women," such as by canceling drag shows and thus their "disrespectful message." Spectrum WT v. Wendler, 151 F.4th 714, 739 (5th Cir. 2025) (Ho, J. dissenting).

Yet "[w]hat is good for the goose, is good for the gander—but not necessarily a pterodactyl." United States v. Perkins, 99 F.4th 804, 820 (5th Cir. 2024). Here, the government's confessed viewpoint discrimination is more pterodactyl than gander to CLS's goose. The CLS majority upheld the open-to-all-comers requirement on the grounds that it was a content-neutral restriction that applied to all groups and did not discriminate based on viewpoint. That holding cannot justify the viewpoint-based discrimination that occurred here. The en banc court should therefore affirm the panel majority.

Argument

[I.] Viewpoint Discrimination Is Forbidden Even in Limited Public Fora and Nonpublic Fora.

In limited public fora and nonpublic fora, the government may impose reasonable viewpoint-neutral restrictions, but not viewpoint-based restrictions. "Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985). "These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when [a] limited public forum is one of its own creation." Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995). This requirement of viewpoint neutrality in limited public fora and nonpublic fora has been reaffirmed repeatedly, including with regard to use of space in public schools and universities (as in Rosenberger itself). See, e.g., CLS, 561 U.S. at 681–83 (student-only access to facilities in a university); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107–09 (2001) (likewise); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 392–93 (1993) (use of space in a school); Little Pencil, LLC v. Lubbock ISD, 616 Fed. Appx. 180, 181 (5th Cir. 2015) (holding that school district could refuse to run a local tattoo parlor's ads on its jumbotron because that was a "content-based, viewpoint-neutral limitation[]"); Gay & Lesbian Students Ass'n v. Gohn, 850 F.2d 361, 366–67 (8th Cir. 1988) (cash subsidies to student clubs). Viewpoint discrimination in limited public fora or even in nonpublic fora is an "egregious" and "blatant" violation of the First Amendment. Rosenberger, 515 U.S. at 829–30.

[II.] The Government Engaged in Impermissible Viewpoint Discrimination.

The government's confessed reason here for banning drag shows is the shows' perceived viewpoint: The government asserts that by airing publicly what government officials consider "sexist" tropes that support improper views of gender, the drag show undermines the university's preferred message that all people should be treated equally. See Spectrum WT, 151 F.4th at 735 (Ho, J. dissenting) ("West Texas A&M President Walter Wendler concluded that drag shows are demeaning to women," that they "mock[] another person or group"). And such restrictions targeted at views that are perceived as bigoted are of course viewpoint-based. See Matal v. Tam, 582 U.S. 218, 243–44 (2017) (Alito, J., plurality opinion) (concluding that the government engaged in viewpoint discrimination when it refused to register the trademark "The Slants" on grounds it "disparage[s] . . . or bring[s] . . . into contemp[t] or disrepute" any "persons, living or dead"); see also id. at 248–49 (Kennedy, J. concurring) ("The [Lanham Act's anti-disparagement clause] . . . reflects the Government's disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination."); R.A.V. v. City of St. Paul, 505 U.S. 377, 386–89 (1992) (outlining the difference between content-neutral and viewpoint-based speech restrictions, and observing that "a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion" because such a law would be impermissibly viewpoint-based); Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1126 (11th Cir. 2022) (holding that a government policy that prohibited "speech that denigrates rather than validates certain characteristics" was a viewpoint-based distinction); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 391–92 (4th Cir. 1993) (holding that a university engaged in viewpoint discrimination when its admitted reason for punishing several students for dressing in drag or blackface during a public performance included the performance's disrespectful nature, which "ran counter to the views the University sought to communicate to its students and the community" by "scoff[ing] at [the University's] goals of racial integration and gender neutrality").

The dissent suggests that Iota Xi might have been decided differently had CLS preceded it. See Spectrum WT, 151 F.4th at 736 (Ho, J., dissenting). But Iota Xi and CLS are entirely consistent, for the reasons given above: Both cases recognize that viewpoint-based restrictions are unconstitutional, including restrictions on discriminatory viewpoints. CLS, 561 U.S. at 684–85; Iota Xi, 993 F.2d at 391–92. And judges continue to cite Iota Xi as good law even after CLS. E.g., Tex. A&M Queer Empowerment Council v. Mahomes, 772 F. Supp. 3d 792, 806 (S.D. Tex. 2025) (Rosenthal, J.); Abbott v. Pastides, 263 F. Supp. 3d 565, 578 (D.S.C. 2017), aff'd, 900 F.3d 160 (4th Cir. 2018); Feminist Majority Found. v. Hurley, 911 F.3d 674, 717 (4th Cir. 2018) (Agee, J. concurring) (citing Iota Xi as grounds for rejecting a feminist group's request to ban from campus an expressive forum (YikYak) under Title IX because "universities cannot 'restrict expression because of its message or its ideas' such as by 'silencing speech on the basis of its viewpoint'" (quoting Iota Xi, 993 F.2d at 393)).

[III.] The Court's Decision in CLS Cannot Justify Viewpoint Discrimination and Is No Substitute for Strict Scrutiny.

The panel dissent's broad observation that the "Supreme Court precedent [(CLS)] demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all" cannot justify the viewpoint discrimination apparent in this record. Spectrum WT, 151 F.4th at 733 (Ho, J., dissenting). Any deference that precedent affords university officials applies only to viewpoint-neutral regulations, such as blanket prohibitions on the exclusion of prospective members in exchange for government subsidies. See generally Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919, 1924–31 (2006) (discussing difference between content-neutral subsidy cases and viewpoint-discriminatory ones).

Indeed, in the very first line of its very first paragraph, CLS said that "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." 561 U.S. at 667–68 (citing Rosenberger, 515 U.S. 819, a limited forum case). But it held that the policy at issue in CLS did not violate that principle because the policy did not restrict groups' speech based on viewpoint: "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." CLS, 561 U.S. at 696 & n.26 (emphasis added).

Nor did CLS rest on any broad principle that university officials are owed some kind of special deference or respect that obviates the need to analyze whether a university's content-based restrictions are narrowly tailored to serve compelling state interests, or, worse, are viewpoint-based. Cf. Spectrum WT, 151 F.4th at 735–37 (Ho, J., dissenting) (arguing for "respect" for university "expertise" under CLS, without considering whether the university's restrictions in this case are content- or viewpoint-neutral). The Court's reference respect to the "expertise and experience of school administrators" applied only to discerning whether the restriction is reasonable. CLS, 561 U.S. at 687–88. But no deference is provided when deciding whether a restriction is viewpoint-neutral, nor can deference justify one that is plainly viewpoint-based (and thus blatantly unconstitutional). Quite the contrary. The Court made clear in CLS that "This Court is the final arbiter of the question whether a public university has exceeded constitutional constraints," and rejected any notion that "we owe [any] deference to universities when we consider that question." 561 U.S. at 686.

Nor does CLS's allowing a content-neutral restriction on student clubs' membership criteria mean that "a fortiori" universities can impose viewpoint-based restrictions on other clubs, including "to protect the dignity and safety of women." Spectrum WT, 151 F.4th at 739 (Ho, J., dissenting). Under CLS, governments are free to open a subsidy program only to nondiscriminating groups so long as the government limits the subsidy in content-neutral ways that are reasonably applied; viewpoint-based restrictions continue to be barred. See 561 U.S. at 696; Cornelius, 473 U.S. at 806 (same). Indeed, the Court in CLS took pains to make clear in several passages that the "all-comers" policy there was constitutional because that policy was facially viewpoint-neutral:

• "[T]he First Amendment generally precludes public universities from denying student organizations access to school-sponsored forums because of the groups' viewpoints." Id. at 667.
• "Any access barrier must be reasonable and viewpoint neutral." Id. at 674.
• "The fact that a university expends funds to encourage a diversity of views from private speakers, this Court has held, does not justify it in discriminating based on the viewpoint of private persons whose speech it facilitates." Id. at 682 n.13 (cleaned up).
• "The State may not . . . discriminate against speech on the basis of . . . viewpoint." Id. at 685 (cleaned up).
• "If restrictions on access to a limited public forum are viewpoint discriminatory, the ability of a group to exist outside the forum would not cure the constitutional shortcoming." Id. at 690 (cleaned up).
• "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." Id. at 696 n.26.

To be sure, the CLS dissent argued that the policy in that case was "not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination," id. at 707 (Alito, J., dissenting); see also id. at 724 (Alito, J., dissenting) (concluding that "[a]s interpreted by Hastings and applied to CLS," the law school's actions "constituted viewpoint discrimination"). But the majority did not endorse the dissent's assertion as to this point: As noted above, the majority upheld the law school's policy only after repeatedly stressing that it was "viewpoint neutral" as written, id. at 694–97 (and indeed remanded the case so that the lower court "may consider CLS's pretext argument if, and to the extent, it is preserved," id. at 697). See also Cornelius, 473 U.S. at 812 (holding that although the government's policy of limiting a government charity drive to certain participants was facially viewpoint-neutral, remand was required to determine whether such exclusions were "in fact based on the desire to suppress a particular point of view"). Whatever the merits of the CLS dissent's analysis may be, "only the Supreme Court can overturn its own precedents." Spectrum WT, 151 F.4th at 735 (Ho, J., dissenting). This Court must therefore treat CLS as precedent for endorsing facially viewpoint-neutral restrictions, but for rejecting rather than embracing viewpoint-based ones. There is, in fact, no precedent for endorsing viewpoint discrimination in such fora.

And indeed open-access rules like those upheld in CLS are generally treated as content-neutral. E.g., CLS, 561 U.S. at 694 ("It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers."); Roberts v. U.S. Jaycees, 468 U.S. 609, 623–24 (1983) (treating antidiscrimination rules as "not distinguish[ing] between prohibited and permitted activity on the basis of viewpoint"); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643, 648 (1994) (treating laws that required carriage cable systems to carry local broadcast stations as "content-neutral" and acting "without reference to the content of speech"). Such rules do not treat expressive associations differently based on what the associations say, nor are they justified by the content, much less by the viewpoint, of the expressive associations' speech. And they reflect the principle that the government may deny subsidies even on content-based but viewpoint-neutral grounds, so long as the content-based distinction is part of the definition of the program. E.g., Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548–51 (1983) (concluding that content-based but viewpoint-neutral exclusions of electioneering and lobbying speech from tax subsidies are constitutional).

Here, however, the university's actions were indubitably and admittedly viewpoint-based. See supra Part II. The university cannot engage in such viewpoint discrimination consistent with the First Amendment, just as a public university could not permissibly withdraw a subsidy from a religious student association out of fear that the group might use the subsidy to show films in the forum celebrating marriage between one man and one woman. And, despite the panel dissent's contrary suggestion, CLS does not authorize government to discriminate based on viewpoint. To the contrary, CLS continues the Court's "tradition of protecting the freedom to express the thought that we hate,'" including "discriminatory" "viewpoint[s]." CLS, 561 U.S. at 696 n.26.

Conclusion

CLS and many other cases make clear: The government may not discriminate based on viewpoint even in limited public fora and nonpublic fora, and certainly in designated public fora. The restriction in this case was viewpoint-based, and therefore unconstitutional. For this reason, this Court should affirm the panel majority's judgment that Plaintiffs are likely to succeed on the merits.

Many thanks to Joshua Bennett for putting this together.

Comments

[Dr. Ed 2]

My response would be "OK, and then we will have the raunchiest wet T shirt contest and really piss off the feminists."

And "so sorry, the court says we get to do it."

[CommentMonkey]

In this case, it appears all sides agree that the drag show is expressive activity. It was intended to make a political point in a colorful or attention-getting way. Most wet t-shirt contests aren't expressive activity. Could be. A group could hold a wet t-shirt contest to protest oppressive sexual mores or celebrate women's bodies or whatever. But most of them aren't.

It also seems likely wet t-shirt contests will run into content-neutral problems, such as violation of public nudity restrictions. That would be different than the facts of this case, which involve the college president's personal judgment that drag shows are offensive to women. In other words, the basis for banning the drag show overtly discriminates on the basis of viewpoint. Enforcing a public nudity restriction would not.

[Greg J]

Oh, bullshit

If a "drag show" is "expressive political advocacy", then a holding a wet t-shirt contest to mock the drag show is equally "expressive political advocacy".

Pick one and stick to it.
Oh wait, to do that you'd have to actually have principles, and no one on the Left has those

[CommentMonkey]

Well I think you're right that if you have a wet t-shirt contest to make a political point, you're in the same boat as someone holding a drag show to make a political point.

I was responding to the general idea that if you allow drag shows you have to allow wet t-shirt contests. Most of the time, that isn't true. These drag show performances generally involve political advocacy; wet t-shirt contests generally don't.

[Reallynotbob]

I'm not so sure the court would find no expressive quality to a wet t-shirt contest. Porn is expressive, as are bikini contests. I do agree that content-neutral restrictions may come into play, but I wouldn't want to argue on "expressive" grounds.

[y81]

I doubt that most drag shows are staged as a form of political advocacy. They have been held in bohemian venues for years. Mostly, they are staged because some gay men find them appealing, and many straight men find them amusing (and both groups will pay money to attend).

[Josh R]

The Court rejected requiring political advocacy in Reed v. Town of Gilbert. If wet T-shirt contests express any message, not permitting them is at least a content-based restriction (which would be OK in this case so long as the restriction is not viewpoint based).

[TwelveInchPianist]

"Most wet t-shirt contests aren't expressive activity."

Huh? I thought they objectified women.

[John F. Carr]

See Beauty Pageants Have First Amendment Right to Limit Contestants to "Natural Born Females". Rewarding women for showing off their hot bodies can be expressive activity.

[not guilty]

Celebration of sexuality is indeed expressive activity. That is why (non-obscene) nude or semi-nude dancing is protected by the First Amendment. See, Schad v. Borough of Mount Ephraim, 452 U.S. 61. 65-66 (1981).

[NvEric]

Would you say reciprocally expressive ?

[MollyGodiva]

So? Wet t-shirt contests happen at colleges all the time. And I think those would be protected under 1A.

[y81]

It would be more accurate to say that wet t-shirt contests happen at private establishments (bars) in neighborhoods with lots of young people, including neighborhoods with lots of college students.

[MollyGodiva]

They also happen on campus, especially if there is a frat house on campus.

[ReaderY]

Rightly or wrongly, the Court has tended to treat sexually related content including nudity, especially public nudity including nudity in a public forum, as a sort of sui generis category which while not wholly outside First Amendment protection has fairly consistently, for various reasons in various cases, gotten less than full protection, and occassionally not much.

But also rightly or wrongly, the courts here are not putting drag shows in the sexually related content category. It simply isn’t part of their world or on their radar screen to think of it as sexually related or akin to nudity.

[Greg J]

Then they're morons, because drag shows are by their nature sexual

[CJColucci]

They don't get me excited. Is it different for you?

[mike petrik]

I'm not 100% sure what the test is, but I'm 100% sure that what might or might not excite you is not it.

[loki13]

Justice Potter Stewart would disagree!

[David Nieporent]

Then they're morons, because drag shows are by their nature sexual

Do you not know what drag shows are, or do you not know what truth is?

[Greg J]

Greg's handy dandy guild for the (willfully?) stupid Leftist as to "what is sexual":
1: are the performers wearing fishnet stockings?
2: Do the performers have 80%+ of their legs exposed &/or only covered with footwear?
3: Do viewers / customers shove "tips" into the performers' clothes?
4: Do the performers were clothes / prosthetics that empathize the breasts, butt, and / or genitals?

The more yeses, the more sexual the show. Do tell us about the drag show that doesn't have at least 3 of these 4

[CommentMonkey]

[loki13]

"The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an of fended innocent in the crowd."
Barnes v. Glen Theatre, Inc. (501 U.S. 560) 1991
Scalia, J., concurring.

[MollyGodiva]

This is an easy case. Of course drag bans violate 1A. This case has gone on too long. Also the dissent's obsession with CLS makes no sense because that case had a different legal issue.

[loki13]

That's because of, um, the dissenter.

As we all know, the Ho is a troll.

Or is it ... the troll is a Ho?

Eh, both fit.

[loki13]

I'm just going to say that of the many culture war things, the right's bizarre fascination with ... drag shows ... has to be one of the stupidest. Which is saying something.

Drag shows are fine. Literally, who cares? When I was in high school, I dressed in drag for a school performance (it was ... eh, long story). I was not psychologically harmed, and neither was my audience. It was fun.

It has a long history- not just the actual use by its originating community (Paris is Burning is a great starting point, especially if you watched Pose, but just a starting point) but also in the mainstream; Monty Python?

It's literally the definition of, "Who cares." People need to get over themselves. If you don't like drag, don't go to the show.

[Sarcastr0]

I'm not sure it's best to think of this as an actual issue. It seems more of an own the libs initiative. Drag shows are lib-coded, so going after them makes libs mad.

Thus, all the complaints about rights is actually a value add.

[loki13]

*shrug* I know, but this is just so stupid. There are plenty of things I don't care for .... and you know what? I don't go to them.

That's supposed to be the great thing about America. You like what you like, and more power to you. Monster trucks. Drag shows. Country music. Reggaeton. NASCAR. Formula 1. Marvel movies. A24 and Neon.

It's all good. Live and let live, y'all. Or maybe broaden your horizons a little- so long as it's your choice.

[Greg J]

Oh, please

You freaks are PUSHING the drag shows to "own the cons". So kindly fuck off with the "those big meanie cons are only fighting these to 'own the libs'".

Forcing your bullshit on the rest of us is an attack. Resiting your attack is just sane

[Sarcastr0]

I’m with Loki. I’m not pushing anything; I find drag shows boring personally.

From your other comments you may be mixing it up with burlesque.

You made up a whole persecution out of nothing. Which is why I find you and this whole crusade against drag silly.

[Greg J]

The lawsuit the post is about is happening because freaks are pushing a drag show

[Greg J]

I used to regularly attend live performances of Rocky Horror. I know what a drag show is.

It has a time and place. That time and place is in a private establishment that wants to hold it, for adults.

[David Nieporent]

1) Nobody is pushing drag shows to own the cons. Do you not know what drag shows are, or do you not know what truth is?

2) How is a show in a private venue "forcing" anything "on" anyone? (To be clear, by "private venue" I don't mean the venue here is privately owned; I mean that the event is not visible to anyone who doesn't go inside the building to see the show.)

[Greg J]

If they weren't pushing them, there would be NO "Drag queen story hour" at libraries, and this lawsuit wouldn't be happening

[LawTalkingGuy]

Drag shows are also kind of funny because in some sense they reinforce gender stereotyping for comic effect. “Isn’t men dressing like women silly?” should be a message the right believes in.

But, they also view it as a gateway drug to trans acceptance. Which it also is: men who want to put themselves out there inverting gender stereotypes in an exaggerated way are obviously going to be more accepting of the LGBT+ community.

So they have to attack drag shows because it seems to be an attack on the most fundamental hierarchy in nature: men and women. And for conservatives, if that is questioned, than so can any hierarchy they want to defend! It’s a key front in an existential battle against the left.

That’s the intellectual case. Although many right-wing beliefs can simply be boiled down to: they’re just miserable bastards.

[loki13]

"Although many right-wing beliefs can simply be boiled down to: they’re just miserable bastards...."

And we want everyone else to be as miserable as we are.

[hobie]

Nonsense. I grew up watching Bosom Buddies, Tootsie, Liberace, Mrs. Doubtfire, Milton Berle...and although not drag, gotta give a shout out to Dr. Smith - the gayest character in TV history (although I had no idea as a child. Would have needed some MAGA back then to point it out).

None of that made we want to cut off my dick. You know who did want cut off their dicks back then? Gay boys.

[not guilty]

Władziu Liberace presented at the Pearly Gates seeking admission to Heaven. Saint Peter said to him, "Mr. Liberace, I'm afraid there's a problem. It says in the Book of Life that once while in concert, you bit the head off of a live bat."

Liberace replied, "Oh, no! I think you may be confusing me with Ozzy Osborne. On the other hand, I may have eaten a cockatoo."

[NvEric]

Drag is the match.
Transgender the fuse.
The operation is the bomb.
A sequence to destroy lives and make reproduction impossible

[Brett Bellmore]

I think drag shows are stupid all around, but as long as you leave children out of it, I can't summon up a good give a damn.

But I can't help but recall this golden oldie from when The Onion was funny. Yup, pretty much sums it up. One Pyhric victory, coming up.

[hobie]

Kinda reminds me of a Trump rally...but gayer.

[Greg J]

The CLS majority upheld the open-to-all-comers requirement on the grounds that it was a content-neutral restriction that applied to all groups and did not discriminate based on viewpoint

And that's flat out wrong. Because "we are only open to believers" is part of their "content".

[Josh R]

I think Eugene may have gotten this part wrong. From CLS:

Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum.

Nowhere in the decision does The Court say the policy is content neutral.

[Eugene Volokh]

The Court says the policy is both viewpoint-neutral (the requirement for restrictions in limited public fora) and content-neutral. "Hastings' requirement that student groups accept all comers, we are satisfied, 'is justified without reference to the content [or viewpoint] of the regulated speech.'" "[CLS's] argument stumbles from its first step because '[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.'"

[Josh R]

I stand corrected.

Let's say in Boy Scouts v. Dale, New Jersey had a law which required the Scouts to take all comers as scoutmasters (not just banning discrimination on the basis of sexual orientation). Is that a content-neutral regulation?

[loki13]

Dale was a 1A case, but it wasn't a free speech case.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

See, the 1A protects:
Establishment of religion.
Free Exercise.
Freedom of speech.
Press.
Assembly.
Petition.

Oh, and the period at the end? That protects association. And Dale was an association case, which doesn't have the free speech content-neutral analysis.

[Josh R]

CLS was also an expressive association case.

As I understand the decision, The Court held subsidized student groups are a limited public forum (not the case in Dale) and the all-comers policy was viewpoint neutral. As such, the policy was permissible even though it may have not been content neutral (or, so I thought). In contrast in Dale, traditional forum analysis applies and NJ's anti-discrimination statute was not content neutral.

But now Eugene correctly points out the The Court also held the all-comers policy was content neutral. Hence my question about a different statute than the one at issue in Dale.

An aside. IIRC, Eugene argued that had CLS's policy mirrored NJ's statute (not all-comers, but banning discrimination on the basis of a limited number of classifications), it would still be viewpoint neutral (and pass muster in a limited public forum), but not content neutral.

[loki13]

Fair.

I had to look up CLS again (it was a while back, and I hadn't looked at it in a while). It basically treated the speech and expressive-association claims as identical (and, hey, the majority name-dropped EV!) while dismissing Hurley to a footnote, basically saying it's different because it was in a public forum and because it was about the right to exclude.

[Josh R]

It was Stevens who name-dropped EV. During oral arguments, Kennedy hinted that a policy which did not permit discrimination on the basis of a subset of classifications would not pass muster. EV argued it would.

[Reallynotbob]

It seems to me the issue with "drag shows" is selective anyway. Shakespeare plays were performed in drag originally, and sometimes still are. Modern performances of Twelfth Night typically cast a woman playing a man, i.e. "in drag."

[Brett Bellmore]

I think we can actually distinguish between "drag" and male actors portraying women (or the reverse) in a non-satirical manner. Though I doubt the distinction has any legal significance, and I wouldn't have put it past Shakespeare to do it satirically.

[loki13]

Why? Again, who cares?

This is the 19th century mindset that led people to think that women couldn't wear pants. Because reasons. Or whatever. I'm sure that back then, Brett would have been saying, "How dare a woman wear athletic shorts, or jeans. That's against my view of gender norms. HARUMPH! Perhaps if it was for a sanctioned performance, but no other reason unless society itself collapse!"

Let people wear whatever they friggin' want to. For a performance, or in general.

[Brett Bellmore]

Give me a break. Drag queens don't look anything like real women. They're a deliberate and somewhat insulting parody of them, if anything.

[loki13]

Give you a break? I think your big brain knows as much about drag as it knows about most things.

Bubkes.

Like almost everything, you cover up your fear of things that are beyond your limited worldview with fear and hate, and then make grand pronouncements about what it really means- which results is you saying a lot about you, and almost nothing about the subject on which you are opining.

[John 4]

I've aced every drag show I've ever attended. Many performers realize they can talk to me about drag almost as an equal.

[CJColucci]

Drag queens don't look anything like real women.

You need to get out more.

[John 4]

This could be Brett's motto.

[not guilty]

Perhaps after the program was canceled, the organizers should have arranged a screening of "Some Like It Hot," "Tootsie" and "Mrs. Doubtfire" in its place.

[Katall]

A better comparison would be minstrel shows or KKK rallies. Would they be allowed, too?

[Gregory]

Yes.

[wvattorney13]

The 1A law in this area is a mess. What exactly is the message here that is trying to be communicated?

The law has always distinguished between, "I want to do X" and doing "X should be accepted" versus actually doing X as a statement of protest that X is not accepted.

[Josh R]

When "X" is a show, doing "X" is core speech.