Defendant-by-Defendant Standing and Moody-Required Facial-Review in Pre-Enforcement First Amendment Challenges to S.B. 12

Case: Woodlands Pride, Incorporated; Abilene Pride Alliance; Extragrams, L.L.C.; 360 Queen Entertainment, L.L.C.; Brigitte Bandit v. Paxton
Court: United States Court of Appeals for the Fifth Circuit
Date: February 25, 2026

I. Introduction

This appeal concerns a pre-enforcement constitutional challenge to Texas Senate Bill 12 (“S.B. 12”), a statutory scheme regulating “sexually oriented performances” on public property and in the presence of minors. The plaintiffs—organizations that host Pride-related events, a drag production company (360 Queen Entertainment, LLC), a drag telegram company (Extragrams LLC), and an individual drag performer (Brigitte Bandit)—sued Texas officials and local governments under 42 U.S.C. § 1983, seeking to stop enforcement of the law before any prosecution occurred.

After a two-day bench trial, the district court held S.B. 12 facially unconstitutional under the First Amendment (and alternatively void for vagueness) and entered a broad permanent injunction against multiple defendants. On appeal, the Fifth Circuit did not reach the merits in full. Instead, it focused on (1) Article III standing plaintiff-by-plaintiff and defendant-by-defendant, and (2) the proper framework for facial First Amendment and facial vagueness review—vacating the injunction and remanding for a merits analysis consistent with intervening Supreme Court guidance.

Key issues

• Standing: Which plaintiffs, if any, established an injury-in-fact from chilled speech and a credible threat of enforcement, and against which defendants?
• Scope of relief: Could the district court enjoin state and local officials when only some defendants were traceably connected to any plaintiff’s intended conduct?
• Facial review standards: Did the district court apply the proper facial First Amendment framework (as clarified by Moody v. NetChoice, LLC) and the proper facial vagueness standard (as applied in Roy v. City of Monroe)?

II. Summary of the Opinion

The court emphasized that standing “is not dispensed in gross,” and that for injunctive relief “for every defendant, there must be at least one plaintiff with standing to seek [the] injunction.” Because S.B. 12 had not yet been enforced, the court applied the familiar pre-enforcement “chilled speech” standing test and required that the elements be supported by the evidence adduced at trial (not merely allegations).

III. Analysis

A. Precedents Cited (and how they shaped the result)

1. Standing doctrine and proof burdens

• TransUnion LLC v. Ramirez and Lujan v. Defs. of Wildlife: The opinion anchors standing in the three constitutional elements—injury, traceability, redressability—and reiterates that standing must be established per claim and per form of relief.
• Murthy v. Missouri: Provides the controlling instruction that plaintiffs must demonstrate standing “for each claim … against each defendant” and that injunctive relief requires “for every defendant, … at least one plaintiff with standing.” This case is the keystone for why the injunction could not stand against defendants as to whom no plaintiff proved traceable injury.
• El Paso County v. Trump: Supplies the critical procedural point: once a case proceeds to final judgment, standing must be supported “by the evidence adduced at trial.” The Fifth Circuit used this to scrutinize the bench-trial record and reject generalized fears or speculative enforcement as insufficient when the plaintiff’s own evidence shows non-proscribed conduct.
• Turtle Island Foods, S.P.C. v. Strain, Barilla v. City of Houston, and Susan B. Anthony List v. Driehaus: These cases provide the Fifth Circuit’s pre-enforcement First Amendment standing framework: intent to engage in constitutionally implicated conduct, conduct “arguably proscribed,” and a credible threat of enforcement. They also support the court’s refusal to require a completed prosecution or arrest.
• Inst. for Free Speech v. Johnson: Used to presume a credible threat of prosecution absent “compelling contrary evidence,” so long as a law is “non-moribund.” This presumption allowed 360 Queen to satisfy the threat prong without showing past prosecutions under S.B. 12.

2. Statutory interpretation of “prurient interest” and “sexually oriented performance”

• Amazon.com, Inc. v. McMillan: Cited to justify the interpretive move that the Texas Legislature used “prurient interest in sex” with awareness of its federal doctrinal meaning.
• Roth v. United States and Miller v. California: Provide the historical source of “prurient interest” as a term of art from obscenity doctrine, supporting the court’s view that federal jurisprudence “guides what conduct is arguably proscribed.”
• Ashcroft v. ACLU: Supplies the key gloss: to appeal to the prurient interest “material, at a minimum, must be ‘in some sense erotic.’” This became decisive in rejecting standing for Woodlands Pride and Abilene Pride: even if some contact or dancing could be shoehorned into “sexual conduct,” the trial record did not show erotically prurient performances.

3. Expressive conduct and the First Amendment’s outer bounds

• Tex. Ent. Ass'n, Inc. v. Hegar, City of Erie v. Pap's A.M., and Barnes v. Glen Theatre, Inc.: Cited for the proposition that nude dancing is expressive conduct receiving some First Amendment protection, though only within the “outer ambit.” The court used this to find 360 Queen’s performances “arguably affected with a constitutional interest,” while signaling that certain conduct might fall outside protection.
• Hang On, Inc. v. City of Arlington and City of Dallas v. Stanglin: Invoked to cast doubt on whether certain acts (e.g., audience spanking; direct sexualized contact) are protected expression, even if occurring during a performance. Although expressed as “genuine doubt” in a footnote, this signals how, on remand, the district court must disaggregate “performance” from non-expressive physical contact when mapping constitutional vs. constitutional applications.

4. Enforcement authority, traceability, and sovereign-immunity adjacent doctrine

• Tex. All. for Retired Ams. v. Scott and Ex parte Young: Address the need for an official to have “some connection” and a “particular duty” to enforce the challenged law. The court used Section One’s text to confirm the Attorney General’s enforcement role (civil penalties and injunctive authority), supporting traceability/redressability and neutralizing the Attorney General’s “control” argument as a sovereign-immunity sidestep.
• Air Evac EMS, Inc. v. Tex., Dep't of Ins., Div. of Workers' Comp.: Cited for the overlap between traceability/redressability and Ex parte Young analysis—relevant when identifying the proper defendant for prospective relief.
• State v. Stephens: Supplies Texas-law confirmation that district and county attorneys enforce state criminal laws—relevant to identifying who could enforce Section Three (though ultimately irrelevant due to lack of standing).

5. Facial First Amendment and facial vagueness frameworks

• Moody v. NetChoice, LLC: The central merits-framework pivot. The Fifth Circuit held the district court did not apply Moody’s structured approach to facial free-speech challenges: (i) define the law’s scope; (ii) identify unconstitutional applications; (iii) assess whether unconstitutional applications substantially outweigh constitutional ones in relation to the law’s legitimate sweep. The court stressed that facial challenges are “hard to win” to avoid speculative invalidation and “short circuit[ing] the democratic process.”
• Ams. for Prosperity Found. v. Bonta: Quoted via Moody for the “substantial number of unconstitutional applications” standard in relation to the law’s “plainly legitimate sweep.”
• United States v. Williams and Kolender v. Lawson: Used to separate overbreadth (First Amendment) from vagueness (Due Process), while acknowledging their conceptual overlap.
• Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.: Cited for the rule that vagueness review becomes more stringent when First Amendment rights are implicated.
• Roy v. City of Monroe and Hill v. Colorado: Provide the Fifth Circuit’s demanding facial-vagueness formulation in First Amendment contexts: a law is not facially vague if “it is clear what the ordinance as a whole prohibits” or “surely valid … in the vast majority of its intended applications.” The remand specifically directs the district court to reconsider vagueness “in light of Roy.”
• Ficher v. Bickham: Supplies the appellate restraint principle—“court of review, not first view”—justifying remand rather than appellate merits resolution.
• Doe I v. Landry and Fairchild v. Liberty Indep. Sch. Dist.: Cited to confirm that chilled speech can also establish injury-in-fact for facial vagueness claims, but still requires a serious intent to engage in arguably proscribed conduct.

B. Legal Reasoning

1. The court’s threshold move: narrowing the case to Section One and one defendant

The opinion’s structure reflects a deliberate sequencing: standing first, merits later. Applying Murthy v. Missouri, the court asked whether at least one plaintiff had standing to enjoin each defendant. Because the Attorney General enforces only Section One (civil regulation of a “person who controls the premises of a commercial enterprise” allowing a “sexually oriented performance” in the presence of minors), the court’s standing determinations effectively narrowed the case to:

• Defendant: the Attorney General only; and
• Provision: Section One only.

This narrowing is the opinion’s most consequential procedural outcome: it vacates a broad injunction not because S.B. 12 is necessarily constitutional, but because the district court enjoined parties and enforcement mechanisms that no plaintiff had proven a trial-supported, traceable chill against.

2. “Arguably proscribed” is not “actually illegal”—but it still requires evidence

The Fifth Circuit reaffirmed that the “arguably proscribed” inquiry does not demand the plaintiff’s reading be “the best interpretation” (Turtle Island Foods, S.P.C. v. Strain). Yet, once the case is tried, El Paso County v. Trump requires that standing be supported by the trial record.

That combination drove the plaintiff-by-plaintiff outcomes:

• Woodlands Pride, Inc. and Abilene Pride Alliance: Their described shows were “family friendly,” with no nudity (as defined), no simulated sex, and no record evidence that any disputed choreography was “in some sense erotic” under Ashcroft v. ACLU. The court treated protests and subjective fears as irrelevant to whether the statutory elements were arguably satisfied.
• Extragrams LLC and Brigitte Bandit: Their conduct and intended performances were not shown (on this record) to occur in the relevant jurisdictions tied to the defendants on appeal, defeating traceability.
• 360 Queen Entertainment, LLC: The record contained evidence of (i) eroticized gesticulation using a breastplate and (ii) audience spanking, with minors sometimes present—facts the court held were arguably within S.B. 12’s definition of “sexual conduct” plus “prurient” appeal. That sufficed for injury-in-fact, and the court presumed a credible threat because S.B. 12 is non-moribund (Inst. for Free Speech v. Johnson).

3. Traceability/redressability and the “right defendant” problem

Even where a plaintiff shows chilled speech, the chill must be fairly traceable to the defendant and redressable by the requested injunction. The court’s traceability reasoning was straightforward: because 360 Queen performs in San Antonio, its injury could not be traced to Abilene, Taylor County, Montgomery County, or the district attorneys for those counties. Conversely, the Attorney General’s unique statutory authority to seek civil penalties and injunctions under Section One made him the proper defendant for prospective relief.

4. Why the court remanded instead of deciding constitutionality

Having narrowed the case, the panel still declined to decide whether Section One is facially unconstitutional. It identified a methodological error: the district court did not apply the Moody v. NetChoice, LLC facial-challenge framework, and the parties had not adequately briefed or developed the record for it. Similarly, the district court did not apply the “daunting” facial-vagueness standard articulated in Roy v. City of Monroe. Under Ficher v. Bickham, the Fifth Circuit remanded for the district court to do this work in the first instance.

C. Impact

1. Litigation design: standing must be built per defendant, per enforcement mechanism

The decision operationalizes Murthy v. Missouri in the pre-enforcement free-speech setting: broad, multi-defendant injunctions are vulnerable if plaintiffs do not tie at least one plaintiff’s intended conduct (supported by trial evidence) to each defendant’s enforcement authority. Future challengers to statewide regulatory regimes should expect courts to:

• disaggregate state vs. local enforcement roles;
• require jurisdiction- and venue-specific proof for local officials; and
• limit relief to the smallest set of defendants actually linked to a plaintiff’s credible chill.

2. Evidentiary consequences: “family friendly” framing can defeat “arguably proscribed” standing

Plaintiffs who characterize their own events as “family friendly” and non-erotic may undercut the “arguably proscribed” element when the statute turns on “prurient” appeal. The Fifth Circuit’s reliance on Ashcroft v. ACLU signals that, where “prurient interest” is an element, plaintiffs may need to show (without inviting self-incrimination) concrete facts demonstrating erotic presentation, not merely the presence of drag or public controversy.

3. Merits review: district courts must do the Moody accounting

On remand—and in future facial speech cases—courts in the Fifth Circuit are effectively required to:

• map the statute’s “plainly legitimate sweep”;
• identify a “substantial number” of unconstitutional applications; and
• weigh unconstitutional against constitutional applications, rather than relying on generalized descriptions of chilling effects.

This tends to push litigation toward (i) more granular factual records, (ii) more attention to narrowing constructions, and (iii) as-applied challenges where feasible.

4. Enforcement and minors: foreshadowed narrowing of “protected expression”

The footnoted discussion relying on Hang On, Inc. v. City of Arlington suggests that, even if drag performance is expressive, particular acts—especially intimate physical contact with patrons—may be treated as conduct outside the First Amendment’s core. That framing may influence how lower courts classify regulated acts under S.B. 12 when minors are present, potentially reducing the set of “unconstitutional applications” a plaintiff can marshal under Moody.

IV. Complex Concepts Simplified

• Pre-enforcement challenge: A lawsuit filed before the government enforces a law against the plaintiff. Plaintiffs typically allege they are self-censoring to avoid prosecution.
• Standing (Article III): The constitutional requirement that a plaintiff show a concrete injury, caused by the defendant, that a court order can likely fix. This decision stresses standing must be shown for each defendant you want enjoined.
• “Arguably proscribed” conduct: The plaintiff need not prove the law definitely covers their conduct, but must show their intended conduct could plausibly fall within the statute’s elements—supported by evidence when the case has been tried.
• “Prurient interest” / “in some sense erotic”: A term drawn from obscenity jurisprudence. Here, it functions as a narrowing element: the law is not triggered merely because a performance involves gender expression or provocative costume; it must appeal to a sexualized, erotic interest.
• Facial challenge: A claim that a law is unconstitutional in a substantial number of its applications, not just as applied to one plaintiff. Under Moody, courts must compare unconstitutional applications to the statute’s legitimate sweep.
• Vagueness (Due Process): A law is unconstitutionally vague if ordinary people can’t tell what it prohibits or if it invites arbitrary enforcement. In First Amendment settings the standard is stricter, and facial vagueness is still “daunting.”
• Non-moribund law: A law that is currently on the books and plausibly enforceable; if so, courts may presume a credible enforcement threat absent strong contrary evidence.

V. Conclusion

The Fifth Circuit’s substituted opinion in Woodlands Pride, Inc. v. Paxton is chiefly a decision about justiciability and method. It vacates a broad injunction because, on the bench-trial record, only one plaintiff (360 Queen) established pre-enforcement standing—and only against one defendant (the Attorney General) under one part of the statute (Section One). The court further instructs that any facial First Amendment ruling must be conducted under Moody v. NetChoice, LLC’s structured accounting of constitutional versus unconstitutional applications, and that facial vagueness must be reconsidered under Roy v. City of Monroe’s demanding standard.

In the broader legal landscape, the opinion reinforces a trend toward (1) narrowing injunctions to defendants actually linked to a plaintiff’s proven chill, and (2) insisting on disciplined facial-review methodology—making broad, pre-enforcement invalidation of speech-adjacent statutes more procedurally difficult even before courts reach the underlying First Amendment merits.