Leroy N. Soetoro
2024-03-16 20:44:16 UTC
https://www.msn.com/en-us/news/us/the-supreme-court-s-puzzling-decision-
to-allow-the-government-to-ban-drag-shows-explained/ar-BB1jYmVx
The Supreme Court will allow a public Texas universitys unconstitutional
ban on drag shows to remain in effect, in a decision announced Friday.
The Courts decision in Spectrum WT v. Wendler is just one line long and
offers no explanation. The decision is also only temporary, but it
effectively means that LGBTQ college students in North Texas are not
allowed to exercise their First Amendment rights for an indefinite period
of time.
This is a story with two very clear villains. One is a university
president who banned drag shows on campus, allegedly because he believes
that drag is sexist. The other is a notoriously anti-LGBTQ judge.
Spectrum WT is an LGBTQ student organization at West Texas A&M University.
It was supposed to hold its annual drag show last March at a campus venue
that, according to the organizations lawyers, hosts concerts, beauty
pageants, political events, and other performances hosted by student
groups.
Less than two weeks before the drag show was supposed to take place, the
universitys president, Walter Wendler, abruptly canceled it and announced
that he was banning drag performances from campus.
Wendlers stated reason for the ban is, to say the least, unusual. He
claimed that drag, a kind of theater that satirizes gender norms and often
features men dressed in conventionally feminine clothing and makeup, is
derisive, divisive and demoralizing misogyny. He also likened it to
blackface.
But West Texas A&M is a public university, so Wendler is a government
official who is bound by the First Amendment.
Spectrum WT had wanted to hold another drag show this month, but cant
hold it on campus so long as Wendlers drag ban is in place. Fridays
decision from the Supreme Court is only temporary, and the students have
such a strong case under the First Amendment that it is unlikely the drag
ban will remain in effect forever.
The case will be heard soon by a federal appeals court, which could still
strike down the ban. If it does not, the plaintiffs may then seek review
from the Supreme Court once again. But the practical effect of Fridays
decision is that the group will not be able to hold its show on campus for
the second year in a row.
Even if Wendler were correct that a theater performance that lampoons
female gender norms is inherently sexist, the First Amendment still
protects sexist speech. In fact, it protects nearly all speech that is
offensive, obnoxious, or even hateful. Hence the Supreme Courts 2011
decision that members of a notoriously anti-gay church could stand outside
a fallen Marines funeral holding signs with messages like Thank God for
Dead Soldiers.
Indeed, in its brief to the justices, Spectrum WT has pointed to a federal
appeals court decision that held that a fraternity was protected by the
First Amendment when it dressed several male students in womens clothing
and held an ugly woman contest. One of these men wore actual blackface,
dressing as an offensive caricature of a black woman.
So how did Wendlers obviously unconstitutional drag ban wind up in front
of the highest court in the nation? This, after all, is the very sort of
one-sided legal dispute that lower courts typically resolve with
relatively little drama.
The answer is that West Texas A&M is located just outside of Amarillo,
Texas. And cases brought in Amarillos federal courthouse are all heard by
the citys sole federal judge, Matthew Kacsmaryk. Kacsmaryk is a Trump
appointee with strong ties to the religious right. Hes best known for his
stalled attempt to ban the abortion drug mifepristone.
When Spectrum WTs lawsuit against Wendler came before Kacsmaryk, he did
what everyone familiar with his record already knew he was going to do: He
handed down a decision rejecting the groups First Amendment claims in an
opinion that takes such extraordinary liberties with the Supreme Courts
precedents that it barely resembles a legal argument.
Kacsmaryks decisions, meanwhile, appeal to the United States Court of
Appeals for the Fifth Circuit, a court dominated by Republicans closely
aligned with the MAGA movement.
The Fifth Circuit has not affirmed Kacsmaryks decision, but it has
dragged its feet on this case as much as possible, rejecting two requests
to expedite the case or to provide some sort of temporary relief from
Kacsmaryks decision. The result is that Spectrum WT has been stripped of
its First Amendment rights for nearly a year.
Kacsmaryks flawed reasoning in the drag ban case, briefly explained
The stakes in the Spectrum WT case are quite high and they go far beyond
the question of whether a single student group can put on an annual drag
show. The combination of a deeply ideological trial judge in Amarillo and
an appeals court that enables his disregard for the Constitution has
transformed the Texas Panhandle into a First Amendment-free zone.
The impact of Kacsmaryks decision is mitigated somewhat because a federal
trial judges decisions are not binding on other judges. But if the Fifth
Circuit upholds his ruling, that would carve a significant hole in the
First Amendment throughout Texas, Mississippi, and Louisiana, the three
states overseen by that circuit.
Kacsmaryks opinion is difficult to parse, but he appears to give three
separate reasons he thinks a drag performance is not protected by the
First Amendment. He suggests that drag shows are not expressive and
therefore do not count as a form of speech. He claims that the First
Amendment does not apply to drag shows because they involve sexualized
expressive conduct and not core political speech. And he claims that
universities have broad authority to ban a vulgar and lewd performance
that would undermine the schools basic educational mission.
Lets start with his first argument, that a theatrical performance is not
expressive. To describe this argument is to refute it. And the Supreme
Court has, as one would expect, previously rejected the claim that
dramatic or comedic performances are not speech.
In Southeastern Promotions v. Conrad (1975), a case strikingly similar to
Spectrum WT, government officials tried to block a performance of the
musical Hair, a show that features nudity. The Supreme Court determined
that the attempt to censor the musical was a prior restraint an
attempt to block speech before it is uttered, something the First
Amendment almost never allows.
The Courts opinion also makes it crystal clear that theater is protected
speech. Only if we were to conclude that live drama is unprotected by the
First Amendment or subject to a totally different standard from that
applied to other forms of expression could we possibly find no prior
restraint here, Justice Harry Blackman wrote for his Court. But First
Amendment principles make freedom of expression the rule, and, he noted,
there is no justification in this case for making an exception to that
rule.
Wendlers actions are no different from the prior restraint in Conrad. In
both cases, a government official tried to block a theatrical performance
before it took place.
There is also no merit to Kacsmaryks suggestion that drag performances
are not protected speech because they are sexualized rather than
political.
The Supreme Court held in Schad v. Borough of Mount Ephraim (1981) that
entertainment, as well as political and ideological speech, is protected
by the First Amendment. And in Brown v. Entertainment Merchants
Association (2011), it warned that it is difficult to distinguish
politics from entertainment, and dangerous to try. Even the most prurient
theatrical performances can mingle political messages with less high-
minded ideas. And this is certainly true of a drag show.
Spectrum WT, after all, is an LGBTQ pride organization that wishes to put
on a celebration of a core aspect of gay culture in one of the most
conservative regions in the country, and against the wishes of at least
two powerful government officials who have done everything in their power
to censor this celebration. How can anyone conclude that this performance
has no political content?
That leaves us with Kacsmaryks reasoning that a university may ban a
vulgar and lewd performance that would undermine the schools basic
educational mission.
The idea that lewd, sexualized, or otherwise titillating performances
undermine a universitys basic educational mission will come as a shock
to pretty much anyone who has ever attended college. Taken to an extreme,
Kacsmaryks rule would allow a public university president to ban a
performance of Shakespeares A Midsummer Nights Dream, which features a
sexual encounter between a woman and a man who has been transformed into a
donkey. Indeed, it could potentially endanger any Shakespearean play in
which two characters make the beast with two backs.
It is true that the government may ban what is known as obscene speech.
And schools may sanction speech that materially disrupts classwork or
involves substantial disorder or invasion of the rights of others. But
the standard for obscenity is very high. To qualify as obscene, a
performance must portray sexual conduct in a patently offensive way and
in a manner that does not have serious literary, artistic, political, or
scientific value.
Kacsmaryk does not even attempt to argue that drag shows meet the high bar
for obscenity. And the idea that West Texas A&M students will be so
gobsmacked by a drag performance that their ability to focus on their
classwork will be disrupted is both absurd and insulting to those
students.
So why did the Supreme Court deny relief in such a clear-cut case?
In the Supreme Court, Wendler is represented by Texas Republican Attorney
General Ken Paxtons office, and their brief leaned heavily into
procedural arguments that are irrelevant to the question of whether
Wendlers actions violated the First Amendment. Thats not surprising.
Lawyers often look for ways to dispose of a case on procedural grounds
when they have no good arguments on the merits of the case.
That said, at least some of these procedural arguments are fairly
persuasive or, at least, they would have been persuasive a decade ago.
Team Paxtons strongest argument is that the Supreme Court is supposed to
be reluctant to do anything on its shadow docket, a mix of emergency
motions and other matters that the Court decides on a tight timeframe. As
the Court said in Respect Maine PAC v. McKee (2010), a party asking the
justices to intervene when lower courts refused to do so demands a
significantly higher justification than other cases in which litigants
seek relief from the Court.
It is likely that the Supreme Court denied relief to Spectrum WT at least
in part because the justices believed that they should not act on their
shadow docket and should wait until the Fifth Circuit issues its opinion
in the case.
But while Paxton is correct that the Supreme Court is supposed to be
reluctant to act on its shadow docket, it hasnt shown much reluctance in
recent years.
Before former President Donald Trump took office, the Court was so averse
to granting shadow docket relief that lawyers typically avoided asking for
it. As University of Texas law professor Stephen Vladeck wrote in a 2019
paper, during the sixteen years of the George W. Bush and Obama
Administrations, the Solicitor General filed a total of eight such
applications averaging one every other Term.
After Trump took office, however, the Republican administration started
routinely seeking such relief from the Supreme Courts GOP-appointed
majority, filing 10 such requests in the Courts 2018 term alone. And the
Court rewarded this behavior: Vladeck found that the Trump administration
achieved a full or partial victory in about two-thirds of cases where it
asked the justices to block a lower court opinion on their shadow docket.
The Court also started handing down major precedential opinions on its
shadow docket Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a
shadow docket case, was arguably the most consequential religion decision
of the last 30 years. That said, it has backed away from handing down so
many significant shadow docket decisions since Justice Amy Coney Barrett
published a 2021 opinion warning that her Court was deciding too many
cases on a short fuse without benefit of full briefing and oral
argument.
In any event, Spectrum WTs request for a shadow docket order was always
unlikely to be granted. This is a very conservative Court, with six
Republican appointees. So the likelihood that these justices would go out
of their way to protect queer college students was very small.
In the likely event that the Fifth Circuit rules against Spectrum WT, the
Supreme Court might still step in at some point in the future to reinstate
the First Amendment in the Texas Panhandle. Still, for as long as this
case drags on, in much of North Texas, there is no free speech or, at
least, no way to enforce the First Amendment if the regions sole federal
judge doesnt approve of what you have to say.
--
We live in a time where intelligent people are being silenced so that
stupid people won't be offended.
Durham Report: The FBI has an integrity problem. It has none.
No collusion - Special Counsel Robert Swan Mueller III, March 2019.
Officially made Nancy Pelosi a two-time impeachment loser.
Thank you for cleaning up the disaster of the 2008-2017 Obama / Biden
fiasco, President Trump.
Under Barack Obama's leadership, the United States of America became the
The World According To Garp. Obama sold out heterosexuals for Hollywood
queer liberal democrat donors.
President Trump boosted the economy, reduced illegal invasions, appointed
dozens of judges and three SCOTUS justices.
to-allow-the-government-to-ban-drag-shows-explained/ar-BB1jYmVx
The Supreme Court will allow a public Texas universitys unconstitutional
ban on drag shows to remain in effect, in a decision announced Friday.
The Courts decision in Spectrum WT v. Wendler is just one line long and
offers no explanation. The decision is also only temporary, but it
effectively means that LGBTQ college students in North Texas are not
allowed to exercise their First Amendment rights for an indefinite period
of time.
This is a story with two very clear villains. One is a university
president who banned drag shows on campus, allegedly because he believes
that drag is sexist. The other is a notoriously anti-LGBTQ judge.
Spectrum WT is an LGBTQ student organization at West Texas A&M University.
It was supposed to hold its annual drag show last March at a campus venue
that, according to the organizations lawyers, hosts concerts, beauty
pageants, political events, and other performances hosted by student
groups.
Less than two weeks before the drag show was supposed to take place, the
universitys president, Walter Wendler, abruptly canceled it and announced
that he was banning drag performances from campus.
Wendlers stated reason for the ban is, to say the least, unusual. He
claimed that drag, a kind of theater that satirizes gender norms and often
features men dressed in conventionally feminine clothing and makeup, is
derisive, divisive and demoralizing misogyny. He also likened it to
blackface.
But West Texas A&M is a public university, so Wendler is a government
official who is bound by the First Amendment.
Spectrum WT had wanted to hold another drag show this month, but cant
hold it on campus so long as Wendlers drag ban is in place. Fridays
decision from the Supreme Court is only temporary, and the students have
such a strong case under the First Amendment that it is unlikely the drag
ban will remain in effect forever.
The case will be heard soon by a federal appeals court, which could still
strike down the ban. If it does not, the plaintiffs may then seek review
from the Supreme Court once again. But the practical effect of Fridays
decision is that the group will not be able to hold its show on campus for
the second year in a row.
Even if Wendler were correct that a theater performance that lampoons
female gender norms is inherently sexist, the First Amendment still
protects sexist speech. In fact, it protects nearly all speech that is
offensive, obnoxious, or even hateful. Hence the Supreme Courts 2011
decision that members of a notoriously anti-gay church could stand outside
a fallen Marines funeral holding signs with messages like Thank God for
Dead Soldiers.
Indeed, in its brief to the justices, Spectrum WT has pointed to a federal
appeals court decision that held that a fraternity was protected by the
First Amendment when it dressed several male students in womens clothing
and held an ugly woman contest. One of these men wore actual blackface,
dressing as an offensive caricature of a black woman.
So how did Wendlers obviously unconstitutional drag ban wind up in front
of the highest court in the nation? This, after all, is the very sort of
one-sided legal dispute that lower courts typically resolve with
relatively little drama.
The answer is that West Texas A&M is located just outside of Amarillo,
Texas. And cases brought in Amarillos federal courthouse are all heard by
the citys sole federal judge, Matthew Kacsmaryk. Kacsmaryk is a Trump
appointee with strong ties to the religious right. Hes best known for his
stalled attempt to ban the abortion drug mifepristone.
When Spectrum WTs lawsuit against Wendler came before Kacsmaryk, he did
what everyone familiar with his record already knew he was going to do: He
handed down a decision rejecting the groups First Amendment claims in an
opinion that takes such extraordinary liberties with the Supreme Courts
precedents that it barely resembles a legal argument.
Kacsmaryks decisions, meanwhile, appeal to the United States Court of
Appeals for the Fifth Circuit, a court dominated by Republicans closely
aligned with the MAGA movement.
The Fifth Circuit has not affirmed Kacsmaryks decision, but it has
dragged its feet on this case as much as possible, rejecting two requests
to expedite the case or to provide some sort of temporary relief from
Kacsmaryks decision. The result is that Spectrum WT has been stripped of
its First Amendment rights for nearly a year.
Kacsmaryks flawed reasoning in the drag ban case, briefly explained
The stakes in the Spectrum WT case are quite high and they go far beyond
the question of whether a single student group can put on an annual drag
show. The combination of a deeply ideological trial judge in Amarillo and
an appeals court that enables his disregard for the Constitution has
transformed the Texas Panhandle into a First Amendment-free zone.
The impact of Kacsmaryks decision is mitigated somewhat because a federal
trial judges decisions are not binding on other judges. But if the Fifth
Circuit upholds his ruling, that would carve a significant hole in the
First Amendment throughout Texas, Mississippi, and Louisiana, the three
states overseen by that circuit.
Kacsmaryks opinion is difficult to parse, but he appears to give three
separate reasons he thinks a drag performance is not protected by the
First Amendment. He suggests that drag shows are not expressive and
therefore do not count as a form of speech. He claims that the First
Amendment does not apply to drag shows because they involve sexualized
expressive conduct and not core political speech. And he claims that
universities have broad authority to ban a vulgar and lewd performance
that would undermine the schools basic educational mission.
Lets start with his first argument, that a theatrical performance is not
expressive. To describe this argument is to refute it. And the Supreme
Court has, as one would expect, previously rejected the claim that
dramatic or comedic performances are not speech.
In Southeastern Promotions v. Conrad (1975), a case strikingly similar to
Spectrum WT, government officials tried to block a performance of the
musical Hair, a show that features nudity. The Supreme Court determined
that the attempt to censor the musical was a prior restraint an
attempt to block speech before it is uttered, something the First
Amendment almost never allows.
The Courts opinion also makes it crystal clear that theater is protected
speech. Only if we were to conclude that live drama is unprotected by the
First Amendment or subject to a totally different standard from that
applied to other forms of expression could we possibly find no prior
restraint here, Justice Harry Blackman wrote for his Court. But First
Amendment principles make freedom of expression the rule, and, he noted,
there is no justification in this case for making an exception to that
rule.
Wendlers actions are no different from the prior restraint in Conrad. In
both cases, a government official tried to block a theatrical performance
before it took place.
There is also no merit to Kacsmaryks suggestion that drag performances
are not protected speech because they are sexualized rather than
political.
The Supreme Court held in Schad v. Borough of Mount Ephraim (1981) that
entertainment, as well as political and ideological speech, is protected
by the First Amendment. And in Brown v. Entertainment Merchants
Association (2011), it warned that it is difficult to distinguish
politics from entertainment, and dangerous to try. Even the most prurient
theatrical performances can mingle political messages with less high-
minded ideas. And this is certainly true of a drag show.
Spectrum WT, after all, is an LGBTQ pride organization that wishes to put
on a celebration of a core aspect of gay culture in one of the most
conservative regions in the country, and against the wishes of at least
two powerful government officials who have done everything in their power
to censor this celebration. How can anyone conclude that this performance
has no political content?
That leaves us with Kacsmaryks reasoning that a university may ban a
vulgar and lewd performance that would undermine the schools basic
educational mission.
The idea that lewd, sexualized, or otherwise titillating performances
undermine a universitys basic educational mission will come as a shock
to pretty much anyone who has ever attended college. Taken to an extreme,
Kacsmaryks rule would allow a public university president to ban a
performance of Shakespeares A Midsummer Nights Dream, which features a
sexual encounter between a woman and a man who has been transformed into a
donkey. Indeed, it could potentially endanger any Shakespearean play in
which two characters make the beast with two backs.
It is true that the government may ban what is known as obscene speech.
And schools may sanction speech that materially disrupts classwork or
involves substantial disorder or invasion of the rights of others. But
the standard for obscenity is very high. To qualify as obscene, a
performance must portray sexual conduct in a patently offensive way and
in a manner that does not have serious literary, artistic, political, or
scientific value.
Kacsmaryk does not even attempt to argue that drag shows meet the high bar
for obscenity. And the idea that West Texas A&M students will be so
gobsmacked by a drag performance that their ability to focus on their
classwork will be disrupted is both absurd and insulting to those
students.
So why did the Supreme Court deny relief in such a clear-cut case?
In the Supreme Court, Wendler is represented by Texas Republican Attorney
General Ken Paxtons office, and their brief leaned heavily into
procedural arguments that are irrelevant to the question of whether
Wendlers actions violated the First Amendment. Thats not surprising.
Lawyers often look for ways to dispose of a case on procedural grounds
when they have no good arguments on the merits of the case.
That said, at least some of these procedural arguments are fairly
persuasive or, at least, they would have been persuasive a decade ago.
Team Paxtons strongest argument is that the Supreme Court is supposed to
be reluctant to do anything on its shadow docket, a mix of emergency
motions and other matters that the Court decides on a tight timeframe. As
the Court said in Respect Maine PAC v. McKee (2010), a party asking the
justices to intervene when lower courts refused to do so demands a
significantly higher justification than other cases in which litigants
seek relief from the Court.
It is likely that the Supreme Court denied relief to Spectrum WT at least
in part because the justices believed that they should not act on their
shadow docket and should wait until the Fifth Circuit issues its opinion
in the case.
But while Paxton is correct that the Supreme Court is supposed to be
reluctant to act on its shadow docket, it hasnt shown much reluctance in
recent years.
Before former President Donald Trump took office, the Court was so averse
to granting shadow docket relief that lawyers typically avoided asking for
it. As University of Texas law professor Stephen Vladeck wrote in a 2019
paper, during the sixteen years of the George W. Bush and Obama
Administrations, the Solicitor General filed a total of eight such
applications averaging one every other Term.
After Trump took office, however, the Republican administration started
routinely seeking such relief from the Supreme Courts GOP-appointed
majority, filing 10 such requests in the Courts 2018 term alone. And the
Court rewarded this behavior: Vladeck found that the Trump administration
achieved a full or partial victory in about two-thirds of cases where it
asked the justices to block a lower court opinion on their shadow docket.
The Court also started handing down major precedential opinions on its
shadow docket Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a
shadow docket case, was arguably the most consequential religion decision
of the last 30 years. That said, it has backed away from handing down so
many significant shadow docket decisions since Justice Amy Coney Barrett
published a 2021 opinion warning that her Court was deciding too many
cases on a short fuse without benefit of full briefing and oral
argument.
In any event, Spectrum WTs request for a shadow docket order was always
unlikely to be granted. This is a very conservative Court, with six
Republican appointees. So the likelihood that these justices would go out
of their way to protect queer college students was very small.
In the likely event that the Fifth Circuit rules against Spectrum WT, the
Supreme Court might still step in at some point in the future to reinstate
the First Amendment in the Texas Panhandle. Still, for as long as this
case drags on, in much of North Texas, there is no free speech or, at
least, no way to enforce the First Amendment if the regions sole federal
judge doesnt approve of what you have to say.
--
We live in a time where intelligent people are being silenced so that
stupid people won't be offended.
Durham Report: The FBI has an integrity problem. It has none.
No collusion - Special Counsel Robert Swan Mueller III, March 2019.
Officially made Nancy Pelosi a two-time impeachment loser.
Thank you for cleaning up the disaster of the 2008-2017 Obama / Biden
fiasco, President Trump.
Under Barack Obama's leadership, the United States of America became the
The World According To Garp. Obama sold out heterosexuals for Hollywood
queer liberal democrat donors.
President Trump boosted the economy, reduced illegal invasions, appointed
dozens of judges and three SCOTUS justices.