Free Speech v. Self-Expression In All Forms
A federal judge in Texas vetoes a drag show at West Texas A&M University, says the "First Amendment doesn't protect libertine 'expressive conduct' absolutism."
U.S. District Judge Matthew J. Kacsmaryk wrote that Founding Era documents reflect a shared vision of the First Amendment that was designed to elevate the public discourse necessary to self-government.
This vision does not include drag performances that demean women via “a sexualized striptease, in the presence of minors,” he wrote.
Judge Kacsmaryk, in a 46-page opinion, recently ruling that West Texas A&M University was not required to host a drag show on its campus.
The ruling was ignored by the legacy media — including the New York Times — apparently because it goes against their progressive agenda. Because it is important, I am providing excerpts from Judge Kacsmaryk’s ruling below.
(Note: I’ve covered the legal machinations of this case for years. Anyone who is interested in that tangled web can find a summary here.)
Kacsmaryk denied a 30-member student group, Spectrum WT, the right to conduct a drag show on campus that featured a “provocative,” “transgressive,” “gender-bending” performance that “shatters” sex, sexuality, and gender norms through exaggerated caricatures of the female sex, sexuality, and sex roles, with invited performers who routinely simulated masturbation, simulate sex acts, and “frottage” audience members. (Frottage refers to drag performers grinding their near-bare crotch against an audience member.)
He noted that Spectrum WT said it could not guarantee the event would be closed to minors. This matters because the 9,000 student population of West Texas A&M, includes many high school students — minors — who attend the university’s pre-university program. He said there is no difference between a minor student’s identification card and that of other students.
In prior off campus events, Judge Kacsmaryk noted, Spectrum WT failed to enforce a “PG-13” rating, and in 2025 “failed to enforce the advertised ‘R’ rating at a Valentine’s Day lip-syncing event that descended into ‘BDSM’ themed sex acts.” BDSM is an acronym for bondage, discipline, sadism and masochism.
Judge Kacsmaryk said Spectrum WT was seeking only prospective relief — to hold a drag show in 2026 . Although said Spectrum said the show would have a “PG-13” rating, Kacsmaryk noted that such a rating permits “nudity… including a naked backside or breasts.”
Spectrum WT demanded that the event be held at a campus venue, Legacy Hall, claiming that it was a “limited public” venue.
The Texas A&M University Board of Regents, which operates the West Texas campus plus 10 other university campuses, decided last year that it is “inconsistent” with its core values to allow its facilities to be used for drag shows because they are “likely to create or contribute to a hostile environment for women” contrary to federal anti-discrimination law (Title IX).
Freedom of Speech
Here are some excerpts from, or cited by, Judge Kacsmaryk:
The Fifth Circuit has expressed “genuine doubt… that: pulsing prosthetic breasts in front of people, putting prosthetic breasts in their faces, and being spanked by audience members are actually constitutionally protected — especially in the presence of minors.”
“Drag, by its ‘provocative,’ ‘transgressive’ nature, veers into sexualized content, and Spectrum’s proven inability to control the content elides any argument that the planned 2026 show will be ‘appropriate.’”
Spectrum WT argued the show would support charitable donations but “all conduct can be said to convey a message of acceptance and support. This would turn ‘an apparently limitless variety of conduct’ into protected speech in an impermissible way.”
“If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it.”
“‘[L]ive entertainment’ includes some First Amendment protection for ‘expressive conduct.’ It does not follow that any live performance is “inherent” expressive conduct.”
“Spectrum WT does not—and could not—argue that sexualized drag is the ‘acting out of the written word’ like a traditional play or musical.”
Limited Public Forum
Judge Kacsmaryk held that that West Texas A&M’s Legacy Hall is a limited public forum, “open only to ‘public expression of particular kinds or by particular groups.” He observed that the government “is not required to, and often does not, allow everyone to engage in every type of speech.”
According to the opinion:
Texas A&M President Wendler’s “restriction on Spectrum’s proposed drag show in Legacy Hall is reasonable in light of Legacy Hall’s stated purpose of providing a venue for speech on topics that, pursuant to the University’s core values, do not denigrate any member of the West Texas A&M community.”
“Content-based restrictions on speech in traditional and designated public forums are subject to heightened scrutiny, while the same restrictions in limited and nonpublic forums are not.”
West Texas A&M’s “Expressive Activity on Campus” policy states that several types of “[e]xpressive activities” are “not protected” on its campus, including those involving “physical abuse or assault,” inciting “imminent lawless action,” and “illegal harassment.”
West Texas A&M officials “reserved the right to deny” applications to use Legacy Hall if the proposed event would conflict with the University’s mission or policies.”
Wendler testified at the trial that respect is a '“core value” at West Texas A&M, behind only the health and safety of the student body. He said drag shows “violate the core value of ‘respect’ because such shows caricature and reduce women to nothing more than their sexuality.” Wendler said allowing such shows would “diminish respect” for women on campus, noting women constitute roughly half of all students on campus.
Blackface
Kacsmaryk wrote:
“President Wendler would never permit ‘blackface’ performances at West Texas A&M. To President Wendler, drag denigrates women in the same way that blackface denigrates African Americans: both mock vulnerable groups by caricaturing aspects of their identity.”
“Drag exaggerates women’s breasts, buttocks, and other physical attributes, while blackface emphasizes African Americans’ skin color and offensive cultural stereotypes. But the purpose is the same: to reduce an entire group to merely its sexuality (in the case of drag) or skin color (in the case of blackface). The only difference is that one performance is ‘abhorred by cultural elites’ while the other is in vogue—at least for now.”
Cultural elites abhor blackface, while drag is in vogue.
“In a limited public forum, President Wendler’s actions need only be viewpoint neutral and reasonable in light of Legacy Hall’s purpose.”
Judge Kacsmaryk notes that Wendler clearly does not take issue with the idea that Spectrum claimed it wanted to express — to support the LGBT community— but objects to “the way they would do it: by denigrating West Texas A&M’s female students.”
Kacsmaryk noted that Wendler said he might decline a production of Sherlock that stereotyped Jews, a blackface performance, a white-supremacist rally because they would be “inappropriate for the forum and would harm West Texas A&M mission to promote a culture of respect among its students.”
Conclusion
“Spectrum WT’s proposed show is likely not protected expressive conduct. Even if it were, Legacy Hall is a limited public forum, where Spectrum’s proposed show would not be appropriate. Accordingly, Spectrum WT has not proven by a preponderance of the evidence its claims against President Wendler.”
Judge Kacsmaryk dismissed the case with prejudice - which means it cannot be filed again.