Moody’s Comparative Facial-Challenge Framework Governs: Fifth Circuit Vacates Drag-Show Injunction and Limits Standing to AG’s Enforcement of S.B. 12 Section One

Introduction

In Woodlands Pride v. Paxton (5th Cir. Nov. 6, 2025), a panel of the United States Court of Appeals for the Fifth Circuit vacated a district court’s permanent injunction against Texas Senate Bill 12 (S.B. 12)—a state law regulating “sexually oriented performances” on public property and in the presence of minors—and remanded for further proceedings. The panel’s decision pivots on two interlocking developments: (1) a refined, plaintiff-by-defendant standing analysis that winnowed the challengers and defendants who can remain in the case; and (2) the Supreme Court’s intervening decision in Moody v. NetChoice, LLC, 603 U.S. 707 (2024), which clarified the governing standard for facial First Amendment challenges. The Fifth Circuit instructs the district court to dismiss most defendants for lack of standing and to reconsider the plaintiffs’ facial attack on Section One of S.B. 12 under Moody’s comparative facial-invalidity framework.

The plaintiffs include a drag performer (Brigitte Bandit) and several organizations connected to drag performances or LGBTQ+ pride events: The Woodlands Pride, Abilene Pride Alliance, 360 Queen Entertainment, and Extragrams. The defendants include the Texas Attorney General (AG), two district attorneys (Montgomery and Taylor Counties), two counties (Montgomery and Taylor), and the City of Abilene. After a two-day bench trial, the district court held that S.B. 12 facially violates the First Amendment and permanently enjoined enforcement. The Fifth Circuit vacates the injunction against the appellants and remands, directing dismissal of the city, county, and district-attorney defendants and leaving only the plaintiffs’ facial challenge to Section One against the AG for further adjudication under Moody.

Judge Engelhardt authored the majority opinion. Judge Dennis concurred in the judgment in part and dissented in part, agreeing with several threshold holdings but disputing the majority’s standing determinations for some plaintiffs and cautioning against dicta that could be read to discount First Amendment protection for drag performances.

Summary of the Opinion

The court first describes S.B. 12’s structure:

Section One (civil enforcement): Prohibits “[a] person who controls the premises of a commercial enterprise” from allowing a sexually oriented performance “in the presence of” a minor. The Texas Attorney General exclusively enforces this provision through civil penalties and injunctive suits.
Section Two (local authorization/regulation): Authorizes municipalities and counties to regulate “sexually oriented performances” but forbids them from authorizing such performances on public property or in the presence of minors.
Section Three (criminal enforcement): Creates a Class A misdemeanor for engaging in a sexually oriented performance (i) on public property in a way reasonably expected to be seen by a child or (ii) in the presence of a minor. District and county attorneys enforce state criminal laws.

A “sexually oriented performance” is a “visual performance” that (1) features a performer who is nude or engages in “sexual conduct,” and (2) “appeals to the prurient interest in sex.” The majority reads “prurient interest in sex” through the lens of Supreme Court obscenity jurisprudence and Ashcroft v. ACLU, 535 U.S. 564 (2002): at a minimum, the material must be “in some sense erotic.”

On standing, applying TransUnion and Murthy, the court emphasizes that standing is plaintiff- and defendant-specific, and because the case proceeded to a bench trial, the record must supply evidentiary support. Using the familiar pre-enforcement framework (Susan B. Anthony List; Turtle Island Foods), the court assesses each plaintiff’s intent, whether the intended conduct is arguably proscribed, the presence of a credible threat of enforcement, and traceability/redressability as to each defendant:

Woodlands Pride: No standing. Its “family-friendly” performances do not involve nudity or sexual acts; occasional touching and “twerking” do not meet the “prurient” threshold on this record; vendors handing out condoms are not “performers” engaged in a “visual performance.” The organization does not intend to engage in conduct arguably proscribed by S.B. 12.
Abilene Pride Alliance: No standing. Common interactions (front-facing hugs, accidental bumping) are not inherently prurient; protesting and a prior police visit do not make conduct arguably illegal; condom distribution by a public health department is not a “visual performance.” No intended conduct is arguably proscribed.
360 Queen Entertainment: Standing against the AG only. Performances include “pulsing” a revealing prosthetic breastplate in attendees’ faces and inviting a patron to spank a performer; such “gesticulations using accessories or prosthetics that exaggerate” sexual characteristics and direct buttocks contact are arguably sexual conduct, and “in some sense erotic;” minors sometimes are present; the patio venue is arguably “controlled” by 360 Queen for show purposes; and the AG is the proper Section One enforcer. The court assumes a credible threat in a non-moribund statute and finds traceability/redressability satisfied for Section One. The court notes doubts that some described physical contact is constitutionally protected, citing Hang On, Inc. v. City of Arlington, but nonetheless treats the overall performance as expressive activity for standing purposes.
Extragrams: No standing against the appellants because its shows are not in Abilene, Taylor County, or Montgomery County; thus no traceability to those defendants.
Brigitte Bandit: No standing against the remaining appellants. Bandit largely performs in Travis County and other cities; although one Abilene performance was scheduled, the record lacked details showing conduct arguably proscribed in Abilene or traceable to its officials, especially given the testimony about restricting “sexual shows” to adult-only venues.

Having held that only 360 Queen has standing—and only as to the AG’s enforcement of Section One—the court vacates the injunction and remands. The district court must dismiss the claims against the Montgomery and Taylor County district attorneys (Ligon and Hicks), Montgomery County, Taylor County, and the City of Abilene, and reconsider the remaining facial challenge to Section One under Moody v. NetChoice. The panel underscores Moody’s requirement to evaluate whether a “substantial number” of the law’s applications are unconstitutional in relation to the statute’s “plainly legitimate sweep,” and to do so through a structured comparative analysis the district court did not undertake.

Judge Dennis concurs in part and dissents in part. He agrees that 360 Queen has standing against the AG, that sovereign immunity does not bar suit against the AG, and that Moody necessitates remand. He disagrees with the majority’s standing analysis as to Woodlands Pride, Abilene Pride, and the City of Abilene, relying on legislative history, the breadth and ambiguity of key statutory terms, and the practical realities of enforcement to conclude that more plaintiffs face an “arguable” proscription and a credible threat. He also emphasizes that the injunction remains in place against two non-appealing district attorneys, and cautions that dicta expressing “genuine doubt” about First Amendment protection for aspects of drag performance is inconsistent with settled doctrine.

Analysis

Precedents Cited and Their Roles

Moody v. NetChoice, LLC, 603 U.S. 707 (2024): Sets the governing framework for facial First Amendment challenges. Courts must (1) define the law’s scope (what activities, by which actors, are regulated); (2) identify unconstitutional applications; and (3) compare them to the statute’s plainly legitimate sweep. A law is facially invalid only if unconstitutional applications substantially outweigh constitutional ones. The Fifth Circuit remands for the district court to apply this framework to Section One.
Murthy v. Missouri, 603 U.S. 43 (2024) and TransUnion LLC v. Ramirez, 594 U.S. 413 (2021): Reinforce that standing is not “dispensed in gross.” Plaintiffs must establish standing for each claim, against each defendant, and for each form of relief. This principle drives the panel’s defendant-by-defendant analysis and dismissals.
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) and Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211 (5th Cir. 2023): Provide the pre-enforcement standing test: the plaintiff must intend to engage in conduct arguably affected with a constitutional interest, the conduct is arguably proscribed, and there is a credible threat of enforcement. The majority applies this framework comprehensively to each plaintiff.
Institute for Free Speech v. Johnson, 148 F.4th 318 (5th Cir. 2025): In non-moribund speech regulations, courts assume a credible threat of enforcement absent compelling contrary evidence. The panel uses this presumption to find 360 Queen’s threat of enforcement credible.
Ashcroft v. ACLU, 535 U.S. 564 (2002); Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973): Inform interpretation of “prurient interest in sex.” The majority concludes the Texas Legislature invoked the Supreme Court’s terminology; as a minimum, the challenged material must be “in some sense erotic.” This threshold informs the “arguably proscribed” analysis.
Tex. Ent. Ass’n, Inc. v. Hegar, 10 F.4th 495 (5th Cir. 2021) and City of Erie v. Pap’s A.M., 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991): Recognize nude dancing as expressive conduct but at the outer edge of First Amendment protection. The panel draws on this to treat drag performance as expressive while questioning whether some physical-contact elements fall outside protected expression.
Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995): Holds that intentional contact between a nude dancer and a patron exceeds the expressive scope of the dance. The majority analogizes to question whether spanking and similar contact within drag shows are protected speech.
Ex parte Young, 209 U.S. 123 (1908); Texas Alliance for Retired Americans v. Scott, 28 F.4th 669 (5th Cir. 2022): Establish that state officials with a “particular duty” to enforce a challenged law are proper defendants for prospective injunctive relief. Applied here to hold the AG is a proper defendant for Section One.
El Paso County v. Trump, 982 F.3d 332 (5th Cir. 2020): At final judgment, standing must be proven by the evidence adduced at trial. The court repeatedly notes this standard in parsing the trial record plaintiff-by-plaintiff.
Air Evac EMS, Inc. v. Texas, DWC, 851 F.3d 507 (5th Cir. 2017): Notes overlap between traceability/redressability and the Ex parte Young analysis.
State law authorities: State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2021) (district/county attorneys enforce criminal laws); Amazon.com, Inc. v. McMillan, 625 S.W.3d 101 (Tex. 2021) (legislature presumed to legislate with knowledge of existing law); various Texas code provisions defining “nude,” “sexual conduct,” and the enforcement architecture of S.B. 12.

Legal Reasoning

1) Framing the Standing Inquiry

The court foregrounds Murthy’s and TransUnion’s command that standing must be established for each defendant and form of relief, then applies the pre-enforcement test under Driehaus/Turtle Island Foods. Because the case followed a bench trial, the plaintiffs bear the burden to substantiate each element with the trial record.

2) “Arguably Proscribed” as a Gatekeeper

The majority’s first filter is whether each plaintiff intends to engage in conduct “arguably proscribed” by S.B. 12. Central to that determination is the statute’s two-part definition of “sexually oriented performance”: (1) nudity or specified “sexual conduct,” and (2) “appeal to the prurient interest in sex.” With no statutory definition of “prurient interest,” the court adopts the Supreme Court’s gloss—that the performance must be “in some sense erotic”—and examines each plaintiff’s evidence against that threshold.

Woodlands Pride: The organization’s own controls—screening music for profanity, maintaining a “family-friendly” vibe, articulating do’s and don’ts—combined with testimony of no nudity, sex acts, or lewd genitals display, undercut a finding that its shows are “in some sense erotic.” The record’s references to dance steps (e.g., conga-line hand placement, incidental touching, occasional “twerking”) do not, on this record, rise to prurience. Passing out condoms/lubricant is not a “visual performance” by a “performer.” Result: no arguably proscribed conduct.
Abilene Pride: Testimony describing hugs, accidental bumping, occasional hip bumps, and crowded-venue contact does not show prurience—especially absent evidence that such interactions were erotic in context. Prior protests and a police inquiry prove nothing about statutory coverage. Public health condom distribution is not a “visual performance.” Result: no arguably proscribed conduct.
360 Queen: Two vignettes cross the threshold: (a) a performer wearing a revealing breastplate “pulsed” it and put it in attendees’ faces (arguably “sexual gesticulations using…prosthetics that exaggerate…sexual characteristics”); (b) a patron was invited to spank a performer’s buttocks (arguably “actual or simulated contact…with the buttocks”). The record supports a finding that these acts are “in some sense erotic,” and minors sometimes attend or wander into the patio area. Result: arguably proscribed.
Extragrams and Bandit: The record does not tie their arguably proscribed conduct to the jurisdictions or defendants at issue in the appeal, foreclosing traceability and redressability.

3) Credible Threat, Traceability, and Redressability

The court assumes a credible threat of enforcement for 360 Queen because S.B. 12 is non-moribund and defendants offered no compelling contrary evidence. The Attorney General’s exclusive power to enforce Section One renders the injury fairly traceable and redressable through an injunction against him.

The remaining plaintiffs falter on traceability or redressability: their performances either do not occur in the appealing jurisdictions (Extragrams), lack record evidence of proscribed conduct in those jurisdictions (Bandit), or do not rise to arguably proscribed conduct at all (Woodlands Pride and Abilene Pride).

4) “Control” Under Section One

A central dispute concerns whether 360 Queen “controls” the premises of a commercial enterprise (the restaurant patio) within Section One. The majority notes that control is not synonymous with ownership and relies on Black’s Law Dictionary (“exercise power or influence over”). Given 360 Queen’s show-day exclusivity on the patio, its ticketing, and gatekeeping authority, the company at least “arguably” controls the premises. That suffices at this posture for standing and for Ex parte Young’s “particular duty to enforce” requirement vis-à-vis the AG.

5) Facial Challenge and Moody’s Framework

On the merits, the court addresses only Section One and only as against the AG. The panel endorses Moody’s comparative facial-analysis methodology and finds the district court’s prior approach wanting. On remand, the district court must:

Clearly define Section One’s scope (what it regulates; who it reaches, including the meaning of “controls”).
Identify applications that violate the First Amendment (considering protected expressive conduct, including the First Amendment status of particular performance elements).
Identify Section One’s plainly legitimate sweep (e.g., genuinely erotic performances involving minors; core-proscribable conduct).
Compare and weigh the unconstitutional applications against constitutional ones to determine whether the former substantially predominate.

Because the parties did not brief Moody and the record was not developed to perform this analysis, the Fifth Circuit remands for the district court to conduct it in the first instance.

6) The Partial Concurrence/Dissent

Judge Dennis agrees that 360 Queen has standing against the AG and that remand under Moody is appropriate. He departs from the majority by:

Arguing that more plaintiffs face arguably proscribed conduct due to the statute’s breadth and ambiguity (e.g., undefined terms like “lewd,” “visual performance,” “prurient interest in sex,” and “presence”).
Emphasizing legislative history indicating the law’s avowed aim at “drag shows,” thereby making it at least arguable that the plaintiffs’ performances fall within S.B. 12’s ambit.
Rejecting a scienter overlay that would limit enforcement to negligent or intentional violations; reading Section Three’s silence as supporting strict liability (consistent with some Texas strict-liability offenses involving children).
Finding traceability to the City of Abilene under Section Two because the City must authorize permits for Abilene Pride’s parade/festival, and the statute forbids authorization of covered performances; he concurs that Montgomery and Taylor Counties are not properly tied to permitting in the record.
Underscoring that two non-appealing district attorneys remain enjoined, a point not disturbed by the panel’s vacatur of relief as to the appellants.
Warning that the majority’s expressed “genuine doubt” about the protected status of drag-performance elements conflicts with settled First Amendment doctrine protecting live performance and expressive conduct.

Impact

This opinion has several immediate and longer-term consequences:

Standing in pre-enforcement First Amendment suits: The decision is a sharp reminder that standing must be proven plaintiff-by-defendant and supported by trial evidence at final judgment. Litigants must align their intended conduct with specific defendants’ enforcement authority and with the statute’s geographic scope.
“Arguably proscribed” requires careful factual development: Plaintiffs should build records showing (a) the concrete performance elements likely to trigger both “sexual conduct” and prurient appeal; (b) the context in which minors are present or can observe; and (c) the nexus to particular enforcers. Generic descriptions of “drag” or public controversy will not suffice.
Defining “control” under civil-enforcement regimes: The panel’s acceptance that “control” can include non-owners who exercise power or influence over premises (e.g., via exclusivity agreements and admission control) will shape enforcement and defense strategies in similar statutory schemes.
Moody’s facial-challenge framework is now mandatory in the Fifth Circuit: District courts must perform the comparative analysis, which often will require fuller evidentiary records delineating the statute’s constitutional core and marginal applications. Facial challenges “are hard to win,” and Moody raises the record-development bar.
Protected status of performance elements: While the panel did not resolve the ultimate First Amendment question for specific acts (e.g., chest “pulsing” with prosthetics, spanking), its reliance on Hang On suggests district courts on remand may parse performance elements to separate expressive from non-expressive physical contact.
Local-government exposure under Section Two: The majority eliminated three local defendants for lack of standing, but the concurrence’s analysis flags potential exposure where municipalities “authorize” events. Future plaintiffs will likely target the permitting chain explicitly and document how Section Two compels censorship or denial.

Complex Concepts Simplified

Standing “not dispensed in gross”: Each plaintiff must show an injury traceable to each defendant they sue, and the requested relief must likely redress that injury. You cannot use one plaintiff’s injury to bootstrap jurisdiction over unrelated defendants.
Pre-enforcement standing: A plaintiff does not have to be prosecuted to sue. They must show (1) an intent to engage in speech, (2) that the speech is arguably prohibited by the law, and (3) a credible threat of enforcement.
Arguably proscribed: Plaintiffs need not prove their interpretation is the best reading; they must show it is plausible that the law covers their planned speech.
Credible threat of enforcement: Courts presume a credible threat in non-moribund speech regulations unless the government provides compelling contrary evidence.
Traceability and redressability: The injury must be caused by the defendant you are suing (not a third party), and an injunction against that defendant would likely remedy the injury.
Ex parte Young path around sovereign immunity: You can sue state officials for prospective relief if they have a particular duty to enforce the challenged law.
“Prurient interest in sex”: A term borrowed from obscenity law; at minimum, it requires the material be “in some sense erotic,” not merely about sex in a neutral or educational manner.
Facial challenge under Moody: To strike down a law on its face, the court must compare unconstitutional applications with the law’s legitimate applications and conclude the former substantially predominate. It is not enough to show some unconstitutional applications.

Key Takeaways and Guidance on Remand

Only Section One vs. AG remains: The district court must dismiss the claims against the Montgomery and Taylor County district attorneys, Montgomery County, Taylor County, and the City of Abilene. The remaining question is whether Section One is facially unconstitutional under Moody.
Define “controls” and “presence” carefully: Expect disputes over whether event promoters “control” premises and what qualifies as a performance “in the presence of” minors (including visibility from adjacent spaces). The record should address these textual ambiguities with facts (e.g., exclusivity agreements, sightlines, access points, admission practices).
Build the comparative record Moody requires: Parties should present concrete scenarios illustrating clearly constitutional applications of Section One (e.g., plainly erotic, sexualized performances in front of minors on commercial premises) and arguably unconstitutional ones (e.g., expressive but non-prurient performances). The court must then weigh them.
First Amendment status of specific acts: The line between protected expression and unprotected physical contact (e.g., lap-sitting, spanking, intimate touching) will be pivotal. Parties should address whether the performance as a whole is expressive and whether specific contact “overwhelms” the expression (Hang On).
Non-appealing defendants: As the concurrence notes, injunctions against defendants who did not appeal are generally unaffected. While the majority does not address this, litigants should assess the continuing effect of the district court’s order as to non-appealing district attorneys.

Conclusion

Woodlands Pride v. Paxton underscores two procedural recalibrations in modern speech litigation. First, standing in pre-enforcement First Amendment cases is granular and evidence-driven: each plaintiff must show that their intended conduct is arguably proscribed, that a credible threat of enforcement exists, and that the injury is traceable and redressable as to each defendant. Second, Moody v. NetChoice now requires district courts to conduct a comparative facial-challenge analysis—mapping a statute’s unconstitutional applications against its legitimate sweep and invalidating the law only if the unconstitutional applications substantially predominate.

Applied here, those principles narrowed the case to a single plaintiff (360 Queen) against a single defendant (the Attorney General) and a single provision (Section One). The Fifth Circuit vacated the injunction and returned the case for a Moody-compliant analysis that squarely measures Section One’s constitutional applications alongside any unconstitutional ones. The concurring/dissenting opinion highlights the continuing debate over how expansively to read “arguably proscribed,” the salience of legislative purpose and ambiguity in statutory terms, and the protected status of drag performances within First Amendment doctrine. On remand, the parties’ success will turn on meticulous factual development: what Section One actually covers, how frequently it reaches protected expressive conduct, and whether those unconstitutional applications substantially outweigh the law’s legitimate reach.