Campuses across the country have ongoing debates regarding many different aspects of free speech. At the heart of these debates is whether efforts to confront bias on campuses intimidate students who want to speak their mind. One of the more recent debates involves drag shows on college campuses. 

In 2023, Florida was the first to ask the U.S. Supreme Court to address drag shows. Although not directed at college campuses, Florida had enacted a law, dubbed the “Protection of Children Act,” that made it a misdemeanor to knowingly admit a child to a sexually explicit adult live performance that would be obscene for the age of the child present. In June 2023, a District Court Judge in Florida blocked the law, holding it likely violated the Constitution’s free speech and due process protections and was unconstitutionally vague. The U.S. Court of Appeals for the Eleventh Circuit declined Florida’s emergency application for a stay of the district court’s injunction. The state then appealed to the U.S. Supreme Court asking for a stay of the lower court’s injunction, which would have enabled the state to enforce the law. In November 2023, the U.S. Supreme Court declined to do so. Justice Brett Kavanaugh, joined in part by Justice Amy Coney Barrett, addressed the First Amendment complexities and said the case was an “imperfect vehicle” for deciding some of the questions at the center of the dispute. Practically speaking, state officials are unable to enforce the law until all the legal challenges to it are resolved. 

Also in 2023, Texas sought to ban drag shows by passing Senate Bill 12, which was signed into law in June 2023. That law banned “sexually oriented performances” on public property and in the presence of anyone younger than 18. In September 2023, U.S. District Judge David Hittner found that law to be substantially overbroad and unconstitutionally vague. He went on to conclude that Senate Bill 12 “impermissibly infringes on the First Amendment and chills free speech” and noted that even if it was not unconstitutionally vague, it would still fail as an impermissible restraint on prior speech. His ruling prevented the state from enforcing the law. Similar laws in Tennessee and Montana have failed to pass muster. 

In Texas, students at West Texas A&M University have been fighting with school officials since the school’s president canceled last year’s planned drag show. He called the show contrary to the basis of natural law, “derisive, divisive, and demoralizing.” Interestingly, the president stated that he would not allow the drag show to go forward on campus “even when the law of the land appears to require it.” Proceeds from the show were to be donated to the Trevor Project, which focuses on suicide prevention from LGBTQ+ young people. The students previously had their case reviewed by two lower courts, claiming that those courts refused to act in time to save the previously scheduled drag show. In turn, the students moved the show off campus.

This time, the U.S. Supreme Court’s decision added a bit of a twist. Once again, the opinion was issued by Justice Kavanaugh, joined in part by Justice Coney Barrett. However, unlike the Florida case, there were no dissents. The Justices stressed that the court was not dealing with First Amendment questions, but rather procedural issues related to handling of the case by the lower courts. The U.S. Supreme Court gave the university a very short deadline to respond to the students’ requests. In the meantime, the students will have to wait for a hearing before the Fifth Circuit Court of Appeals, widely viewed as the most conservative federal appeals court in the United States. 

In Texas, those opposed to the drag shows are arguing that they are not inherently expressive, and thus do not merit First Amendment protection. Those in support argue how the shows could convey all of the messages that the college president claimed they conveyed if the shows did not express a message at all. 

Unfortunately, until the U.S. Supreme Court decides to address this issue head-on, more confusion and challenges on this and other First Amendment issues on campuses will likely arise. In the recent words of Justices Clarence Thomas and Samuel Alito, “[u]ntil we resolve it, there will be a patchwork of First Amendment rights on college campuses.”