In what could be the most breathtaking exercise of state authority over the private lives of its citizens in Texas history, Texas law will soon criminalize certain performances deemed as “sexually oriented” without regard to where the performance takes place or any compensation is charged therefor.
SB 12 began its legislative journey as a bill primarily focused on so-called “drag performances” on public property and on commercial entities that charged admission for sexually oriented performances, such as nightclubs and bars, that might be viewed by a minor. As originally filed, SB 12 raised serious First Amendment concerns on account of its vague and open-ended definition of “drag performance,” which could have applied to anything from a high school Shakespeare production to professional dance, theater, films, and numerous other forms of artistic expression. As the bill worked its way through the system, the “drag performance” language came out.
That all changed when the bill got to conference committee. Though the original language proscribing “drag performances” did not reappear, a far broader prohibition, coupled with a criminal penalty, did. As finally passed, SB 12 adds § 43.28, Penal Code, to prohibit a person, “regardless of whether compensation for the performance is expected or received,” from “engag[ing] in a sexually oriented performance: (1) on public property at a time, in a place, and in a manner that could reasonably be expected to be viewed by a child; or (2) in the presence of an individual younger than 18 years of age.”
The first thing to notice about this language is that the “public property” limitation has been tossed overboard. SB 12 now applies to any performance “in the presence” of a minor. That could be a private residence, a private venue hired out for a party, an Airbnb, or any place people congregate on private property to have fun. But it doesn’t stop there. Let’s look at the definitions of “sexually oriented performance” and “sexual conduct.” First, what is “sexual conduct”? An existing definition exists in § 42.25, Penal Code (sexual performance by a child). It covers “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” SB 12, however, doesn’t make use of this definition. Instead, it expands it to apply to: “(A) the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation; (B) the exhibition of representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal; (C) the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals; (D) actual contact or simulated contact between one person and the buttocks, breast, or any part of the genitals of another person; or (E) the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female characteristics.”
SB 12 then defines “sexually oriented performance” as a “visual performance” that (1) features either a performer who is nude or any other performer who engages in sexual conduct, and (2) appeals to the prurient interest in sex.” It’s important to note that the Penal Code already proscribes obscenity, sexual performances by a child, the sale of certain products and materials to children, and pornography. In these areas, there is a somewhat well-worn constitutional pathway through the wall of First Amendment protections.
But SB 12 strays from that path in a fairly dramatic fashion. In the first place, the bill applies to a “visual performance,” regardless of whether “compensation is expected or received.” A “visual performance” is just about anything in just about any medium. Let’s take one case in point, although there so many to choose from. On Friday nights in the fall every Texas city, town, and hamlet conducts a ritual event called a high school football game. Most high schools, in addition to fielding football teams, have dance squads, drill teams, and cheerleaders (many of which compete in local, regional, state, and national competitions). These teams are accoutered in a variety of uniforms and costumes, many of which may push SB 12’s boundary proscribing “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female characteristics.” This was probably added to the bill in conference to shoehorn in “drag performances” once more, and it probably does that to some extent. In a broader sense, however, there is no question that dance teams and cheerleaders could be considered to make “sexual gesticulations” using “accessories,” including certain types of clothing, footwear, props, or other movements or items that “exaggerate male or female characteristics” (what, by the way, is a male or female “characteristic”?). It goes without saying that if we substitute the Dallas Cowboy cheerleaders for the high school drill squads, we are squarely in SB 12 criminal territory.
That’s just one example, and we haven’t even broached the subject of what constitutes “actual contact or simulated contact between one person and the buttocks, breast, or any part of the genitals of another person.” A hug? A slap on the behind? Kissing? Dancing the tango? And remember: unlike the obscenity statute, SB 12 does not distinguish between a performance that has “serious literary, artistic, political, and scientific value,” which is protected, and everything else. As in the filed version of the bill, we are back to criminalizing Shakespeare, Netflix, Hollywood movies, ballet, stage drama, political and social protests, personal expression through dress and movement, and who knows what else, even if it takes place in the privacy of one’s home. Unquestionably, we have crossed a frontier into terra incognita.
Now it’s entirely possible that SB 12 will simply never be enforced except in egregious cases, much like the obscenity statute. Prosecutors confronted with all manner of serious offenses against persons and property, if they wish to pursue violations of SB 12, will need dedicated staff and resources to chase down and investigate every complaint from every person who doesn’t like what someone else is doing. Police departments, already short of patrol officers and stretched to the maximum, cannot be too excited about running down every call that could potentially arise from SB 12, either (not to mention the prospect of arresting the Dallas Cowboy cheerleaders during the halftime show). To the extent that SB 12 sends a message, that’s all well and good, but messages should not be sent in a statute that, in our view, almost certainly violates the First Amendment under a potentially significant number of circumstances and hands off enforcement to an overstretched and undermanned criminal justice and judicial system.
