Children's Defense Fund Files Amicus Brief Opposing Texas’s Drag Ban

On April 17, Fried Frank filed an amicus brief on behalf of the Children's Defense Fund (CDF) in the US Court of Appeals for the Fifth Circuit, urging the court to affirm that Texas's Senate Bill 12 (SB 12), which bans drag performances in the presence of minors, is an unconstitutional restriction on free speech.

CDF, a 50-year-old national racial justice nonprofit born in the Civil Rights Movement, argues in the brief that SB 12 violates the First Amendment rights of both drag performers wishing to express themselves and audiences, including youth, wishing to view these constitutionally protected performances. CDF works alongside and amplifies the power of youth and families, representing the distinctive voices and experiences of youth and parents, including LGBTQIA+ youth and youth of color.

The brief contends that SB 12 impermissibly:

1. Targets speech that is not obscene, even as to minors, and is therefore protected by the First Amendment;
2. Deprives LGBTQIA+ youth of opportunities to observe and participate in expression that fosters community, acceptance and self-expression;
3. Ignores the rights of parents to determine what material is appropriate for their own children; and
4. Fails to distinguish between young children and older teenagers for whom issues of identity and self-expression are particularly important.

"SB 12 represents an unconstitutional restriction on free speech that disproportionately harms the LGBTQIA+ community, and negatively impacts transgender and nonbinary youth of color in particular," the brief states. "Under the guise of 'protecting minors,' SB 12 instead extinguishes important opportunities for youth, particularly LGBTQIA+ teenagers, to engage in self-expression, have fun, and experience affirming spaces that promote acceptance."

CDF's brief supports the plaintiffs-appellees in The Woodlands Pride, Inc. et al v. Paxton et al., urging the Fifth Circuit to affirm the district court's September 2023 ruling that SB 12 is unconstitutional. The full brief can be accessed below.

The Fried Frank pro bono team representing CDF includes partner Janice Mac Avoy and associates Samuel M. Light, Emma Kolesar, Morgan E. Humphrey, Antonio DelGrande, Juliana Dalleva, Laura Brawley and Elena Prieto.

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