I was delighted to sign on to this amicus brief supporting the challenge to Texas's S.B. 12 (Woodlands Pride, Inc. v. Paxton (5th Cir.)), which was filed on behalf of Prof. Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, and me. Here's a summary of the Texas statute, from the brief:
{S.B. 12 restricts "[s]exually oriented performance[s]," which are defined as one that features nudity or "sexual conduct" and "appeals to the prurient interest in sex." See Tex. Penal Code § 43.28(a)(2). Sexual conduct, in turn, is defined as, among other things, "the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics." Id. § 43.28(a)(1)(E). None of the key terms—"sexual gesticulations," "accessories or prosthetics," "exaggerate"—are further defined.
Texas restricts these performances three ways: (1) S.B. 12 criminalizes the performers by making it a crime to "engage[] in a sexually oriented performance" "on public property" where it "could reasonably be expected to be viewed by a child" or "in the presence" of a minor, id. § 43.28(b); (2) it regulates non-public, commercial properties by prohibiting anyone who controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child's presence, Tex. Health & Safety Code § 769.002; and, (3) it proscribes a municipality or county from authorizing such a performance "on public property" at all or "in the presence of an individual younger than 18," Tex. Loc. Gov't Code § 243.0031(c)(1)–(2). The defined performances are banned regardless of whether they have literary, artistic, political, or scientific value.}
Here's the summary of the argument:
