Judges on the 5th U.S. Circuit Court of Appeals pressed Texas A&M’s lawyer Wednesday on a central tension in the university system’s defense of its drag-show bans: how officials can compare such performances to blackface while also arguing the shows are not expressive enough to trigger First Amendment protection.
University administrators were targeting conduct, not a message, said William “Billy” F. Cole, the principal deputy solicitor general in the Texas Attorney General’s office who is defending the system. But when a judge asked about the regents’ concern that drag could promote “gender ideology,” Cole acknowledged to the court that rationale, standing alone, could create a viewpoint-discrimination problem.
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