“A Harmless Drag Show? No Such Ban.” – Spectrum WT v. Wendler and the Fifth Circuit’s Recognition of Drag Shows as First-Amendment-Protected Expression in Designated Public Forums

Introduction

Spectrum WT v. Wendler, decided on 18 August 2025 by the United States Court of Appeals for the Fifth Circuit, addresses whether a state university may summarily cancel a student-organised drag show on the ground that drag is not speech and is inherently “lewd.” West Texas A&M University’s President, Walter Wendler, barred the event, prompting Spectrum WT (an LGBTQ+ student group) and two officers to sue for a preliminary injunction. The district court denied relief, holding that drag is not expressive conduct and, in any event, that the university could restrict it as potentially lewd behaviour.

The Fifth Circuit reversed. It held (1) that the proposed drag show is expressive conduct squarely protected by the First Amendment; (2) that the campus venue, “Legacy Hall,” operates as a designated public forum; and therefore (3) that the university’s content-based ban fails strict scrutiny. The court ordered entry of a preliminary injunction against President Wendler and the Vice-President of Student Affairs, while dismissing claims against the System Chancellor for lack of redressability.

Summary of the Judgment

Expressive Conduct: A drag performance intended to convey solidarity with LGBTQ+ persons is “sufficiently imbued with elements of communication” to invoke the First Amendment. A “particularised message” is unnecessary (Hurley applied).
Forum Classification: Legacy Hall is a designated public forum because the university routinely permits both student and non-student groups to use it for a wide range of events. President Wendler’s new no-drag policy does not retroactively convert the hall into a limited forum.
Strict Scrutiny: The drag-show ban is a content-based restriction that the university never attempted to justify under the compelling-interest / narrow-tailoring standard. Consequently, plaintiffs showed a “substantial likelihood of success.”
Other Injunction Factors: Ongoing deprivation of speech rights constitutes irreparable harm; protecting First Amendment freedoms is per se in the public interest; balancing the equities favours plaintiffs.
Relief: Preliminary injunction ordered against Wendler and Thomas; claim against Chancellor Sharp dismissed for lack of standing.

Analysis

1. Precedents Cited and Their Influence

a. Spence v. Washington, 418 U.S. 405 (1974)

The quintessential “expressive-conduct” test—did the actor intend to convey a particularised message likely to be understood? The district court clung to the “particularised message” language; the Fifth Circuit acknowledged it but reconciled Spence with later cases, stressing that clarity of message is not essential where artistic expression is concerned.

b. Hurley v. Irish-American GLB Group, 515 U.S. 557 (1995)

Hurley rejected the idea that protected speech must transmit a “narrow, succinctly articulable” message. The panel used Hurley to defeat the argument that drag needs a discrete slogan; as with a parade or abstract painting, the communication may be multifaceted yet still protected.

c. Rumsfeld v. FAIR, 547 U.S. 47 (2006)

FAIR held that hosting military recruiters was not inherently expressive because explanatory speech was required. Defendants invoked this to analogise the drag show. The Fifth Circuit distinguished it: unlike mere room scheduling, a drag performance is a performance—speech with theatre, costumes, music, and live commentary.

d. Christian Legal Society v. Martinez, 561 U.S. 661 (2010)

CLS allowed a law school to deny benefits to a student group that excluded non-coreligionists. Judge Ho’s dissent would let CLS control here in favour of deference to universities; the majority distinguished CLS because (i) Legacy Hall is open beyond student groups and (ii) the university targeted expression itself, not membership criteria.

e. Fifth Circuit Speech / Forum Cases

Freedom from Religion Foundation v. Abbott (2020) – framework for traditional/designated/limited forums.
Hays County Guardian v. Supple (1992) – practice over time defines forum nature.
Voting for America v. Steen (2013) – burden on plaintiff to prove expressiveness; cited for doctrinal background.

2. Court’s Legal Reasoning

Expressiveness of Drag: The court evaluated “context, intent, and likelihood of comprehension.” A charity drag show organised by an LGBTQ+ group, promoting The Trevor Project, plainly signals solidarity and inclusion. Even if some drag elsewhere is not expressive, this one is.
Forum Analysis:
- Intent & practice test: Repeated non-discriminatory rental of Legacy Hall to churches, politicians, galas, livestock shows, etc. showed intent to open the hall widely.
- Attempted re-characterisation rejected: Administrators cannot retroactively close a forum to justify censorship (“circular reasoning” problem flagged in Hays County).
Scrutiny & Tailoring: Content-based bans in a designated forum trigger strict scrutiny; president offered moral disapproval (“denigrates women,” “created in God’s image”) not recognised as a compelling state interest, and offered no narrow tailoring.
Injunction Elements:
- Likelihood of success satisfied as above.
- Irreparable harm: Established by Second Circuit & Supreme Court precedent (Elrod, Roman Catholic Diocese).
- Balance/public interest: First Amendment interests outweigh administrative inconvenience.
Ex parte Young & Standing: Personal, ongoing enforcement by Wendler and Thomas sufficed; Chancellor Sharp lacked redressability because no evidence he would enforce the ban.

3. Impact of the Decision

Recognition of Drag as Speech: The ruling is the first federal appellate decision squarely holding that a university drag performance is protected expression. This will guide district courts in Texas, Louisiana, Mississippi, and potentially influence other circuits confronting state “anti-drag” measures.
Limits on University Censorship: Administrators cannot rely on broad “decency” objections or speculative offense to bar student artistic expression in open venues.
Forum-management Doctrine Clarified: A government entity that long operates a venue as open to varied groups may not instantaneously reclassify it as “limited” when controversial speech appears.
State Legislative Tension: The opinion casts constitutional doubt on state bills similar to Texas S.B. 12 that restrict drag performances in public spaces or on campuses.
Dissent Signals Future Clash: Judge Ho’s dissent—invoking CLS, blackface analogies, and Title IX athletic controversies—invites Supreme Court review and foreshadows ideological division over “sex-based parody” versus free expression.

Complex Concepts Simplified

Expressive Conduct: Actions (not merely words) that intend to communicate ideas—e.g., burning a flag, staging a play, or hosting a drag show.
Public-Forum Doctrine: Traditional Forum: Always open (streets, parks).
Designated Public Forum: Government intentionally opens property to broad expressive use; can later close it but meanwhile must treat like a traditional forum.
Limited Public Forum: Government opens property only for particular groups/topics; restrictions must be reasonable and viewpoint-neutral.
Non-Public Forum: No general public access; government may impose broader controls.
Strict Scrutiny: Highest constitutional test: government must show a compelling interest and choose the least restrictive means.
Prior Restraint: Government action that stops speech before it occurs (e.g., permit denial). Highly disfavoured.
Ex parte Young Doctrine: Allows suits against state officials (not the state) for prospective injunctive relief to stop ongoing constitutional violations, bypassing sovereign immunity.

Conclusion

Spectrum WT v. Wendler establishes a significant new benchmark for campus speech: drag performances, when staged to communicate LGBTQ+ solidarity, are First-Amendment-protected expression, and state universities operating open performance spaces cannot censor them on the basis of moral or aesthetic disapproval. The Fifth Circuit underscores that forum status derives from consistent practice—not ad-hoc objections—and that content-based bans in designated public forums rarely survive strict scrutiny. While the dissent urges deference to educational administrators under CLS, the majority aligns more closely with core free-speech tenets, setting the stage for possible Supreme Court review. Practically, the opinion fortifies the expressive freedoms of student organisations across the circuit and signals constitutional peril for blanket anti-drag policies in public venues nationwide.