Federal Court Declares College Drag Show ‘Protected Expression’

A federal appeals court this week allowed a Texas A&M LGBTQ student group to host a drag show on campus, ruling that the event was an expression of free speech. 

A three-judge panel of the Fifth Circuit Court of Appeals sent the case back to the district court with instructions to issue a preliminary injunction preventing university officials from canceling such events while the case is litigated.

The Foundation for Individual Rights and Expression, which argued the case on behalf of the student group, described the decision as a “victory for student expression on campus.”

The case began in March 2023 when Spectrum WT, an “LGBT+” student group at West Texas A&M, planned a charity drag show—designed to promote support for LGBTQ rights—that they intended to host in the school’s Legacy Hall.

The event was to feature a performer named “Myss Myka,” who had performed in a “highly sexualized drag show” off campus the month before, according to the Fifth Circuit’s opinion.

Eleven days before the event, university officials informed the organizers that it was canceled, citing university president Walter Wendler’s belief that drag shows discriminate against women.

A few days later, Spectrum WT—along with plaintiffs Barrett Bright and Lauren Stovall—sued Wendler and Texas A&M officials, asking the district court to grant a temporary restraining order and preliminary injunction allowing them to hold their event—against university wishes.

They then decided to hold their event off university grounds and asked the court to allow them to host drag shows on campus in the future.

In September 2023, though, the district court denied their request, saying that the planned drag show did not “obviously convey or communicate a discernable, protectable message” under the First Amendment.

According to that court, not all drag shows are “inherently expressive” and deserving of First Amendment protection. Even if the drag show in question were protected, the court said, Wendler’s decision was “’objectively reasonable’” considering the “potential lewdness” of the show.

But the appeals court reversed that decision, saying the drag show is “protected expression” under the First Amendment.

Writing for the majority, Judge Southwick said, “It is evident that a message in support of LGBT+ rights was intended” in the show. According to Southwick, that helps make it protected speech under the First Amendment and prevents the university from banning the show for its content. 

Southwick notes that under the First Amendment, content-based restrictions on speech or expression in a traditional or designated public forum can only be applied under rare circumstances (such restrictions must survive strict scrutiny, the most rigorous standard of judicial review).

Judge James Ho, in a dissenting opinion, described the Fifth Circuit’s decision as granting “greater protection to drag shows than devotional acts,” a circumstance he said would “turn the First Amendment upside down.”

FIRE applauded the decision.

“FIRE is pleased that the Fifth Circuit has halted President Wendler’s unconstitutional censorship and restored the First Amendment at West Texas A&M,” said FIRE attorney JT Morris in a news release. “This is a victory not just for Spectrum WT, but for any public university students at risk of being silenced by campus censors.”

The case now returns to the district court to undergo further litigation.

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