What the Fifth Circuit’s Block on a University’s Drag Show Ban Tells Us About the First Amendment

​Is a drag show an expressive activity worthy of First Amendment protection?
 
On Monday, the U.S. Fifth Circuit Court of Appeals decided that it is. In a 2-1 ruling, the court blocked West Texas A&M University President Walter Wendler from preventing a student group from sponsoring a drag show at a campus event center.
 
President Wendler put forward multiple arguments defending his ban. The court’s majority opinion, written by Judge Leslie Southwick, dismantles Wendler’s arguments one by one. That opinion, paired with a strong dissent by Judge James Ho, makes an excellent primer on recent developments in First Amendment law.
 
“A Fool’s Drag Race”
The drag show was organized by Spectrum WT, a recognized student group, at this public university in Canyon, Texas, just south of Amarillo. Titled A Fool’s Drag Race, the show aimed to raise funds for a suicide prevention initiative among LGBT+ youth. Organizers promised to keep the show at a “PG-13” level.
 
Three Arguments Slapped Down
One of Wendler’s objections was that, to qualify for First Amendment protection, an event must present a particular and discernible point of view. Judge Southwick rejected this, citing a 1995 Supreme Court decision that held that “a narrow, succinctly articulable message is not a condition of constitutional protection.” Otherwise, the abstract paintings of Jackson Pollock, the atonality of the modernist composer Arnold Schöenberg, or Lewis Carroll’s whimsical Jabberwocky verse would be unprotected. (Judge Southwick, a George W. Bush appointee, noted archly that the First Amendment even protects “opaque judicial opinions.”)
 
In short, all expressive works are protected by the First Amendment – including, apparently, cross-eyed impersonations of Liza Minnelli singing “Cabaret.”
President Wendler also protested that drag shows do not “preserve a single thread of human dignity,” which comes from being “created in the image of God.” He objected that drag shows, like blackface, “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.”
 
Some agree. Others disagree. Most simply laugh at the campy performances and lip-sync fails. Judge Southwick, however, observed: “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.”
 
Wendler also protested that the campus venue, Legacy Hall, “is not open to the general public.” This would place the event squarely under Supreme Court case law dealing with the right of universities to place restrictions on the use of school resources. But Judge Southwick noted that past uses of Legacy Hall include a local church group’s “Community Night of Worship and Prayer,” a congressional candidate’s forum, a local high school’s “Casino Night,” a dance, a local nonprofit’s benefit gala, a livestock show, and a religious retreat center’s dinner.
 
He concluded: “These past uses, or practices, do not support that West Texas A&M University has limited Legacy Hall to ‘public expression of particular kinds or by particular groups.’”
 
Overall, we largely agree with the majority’s ruling under current Supreme Court precedent. While universities may limit some expression to protect their educational mission, “a justification for selective exclusion from a designated public forum must be carefully scrutinized.”
 
But Bad Precedent Remains
On the other hand, Judge Ho’s dissent highlights a remaining threat to the First Amendment on campus. He wrote:
 
“But as anyone aware of current campus conditions nationwide can attest, the vision of the university as a First Amendment haven is woefully naïve – at least when it comes to views disfavored in certain circles.
 
“Just ask the Christian Legal Society. Members of the CLS chapter at the Hastings College of Law sought to exercise their First Amendment right to associate with fellow believers who share their Biblical views on marriage and sexuality … But university officials chose to expel CLS – and only CLS – from campus. And the Supreme Court sided with university officials over CLS.”
 
Judge Ho quotes the Supreme Court’s insistence from this 2010 case that the First Amendment must be analyzed differently “in light of the special characteristics of the school environment,” in which “judges lack the on-the-ground expertise and experience of school administrators.”
 
With his trademark bluntness, Judge Ho writes: “This is all bunk, of course.”
 
He blasted the Court’s opinion for its deference to “academic ‘experts’” who “advocate policies that violate our nation’s most cherished principles.” Judge Ho adds:
 
“CLS contradicts all these principles. But only the Supreme Court can overturn its own precedents. So until the Court itself overturns CLS, we’re bound to follow it.”
 
Judge Ho’s logic oddly aligns with the majority opinion. Judge Southwick chips away at precedent, while Judge Ho insists on rigorously applying it – though with the shoe now on the other ideological foot. Both suggest CLS is flawed and that viewpoint discrimination has no place in public universities.
 
One unfortunate result of this opinion – a real drag, if you will – is that this case will not give the Supreme Court a chance to revisit CLS. But given the state of America’s colleges and universities, there should be no shortage of cases to test that precedent.

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