Expressing doubt whether explicit and graphic sex shows in front of children actually are protected by the First Amendment, a federal appeals court has allowed a Texas law barring those activities to take effect.
“The law is not facially invalid unless its ‘unconstitutional applications substantially outweigh its constitutional ones,’” said a ruling from 5th U.S. Circuit Court of Appeals.
“The district court did not conduct this analysis, nor did the parties brief the proper standard or adequately develop the record. Consequently, we are unequipped to undertake this task in the first instance, and remand for the district court to do so.”
A Fox News report said the decision lifts the lower court’s injunction against enforcement of the law.
The judges turned to the explicit nature of the shows: “We have genuine doubt, however, that pulsing prosthetic breasts in front of people, putting prosthetic breasts in people’s faces, and being spanked by audience members are actually constitutionally protected—especially in the presence of minors.”
Texas’ law prohibiting explicit sexual performances in front of children is enforceable, according to a decision from the U.S. Fifth Circuit Court of Appeals. pic.twitter.com/bbUEmANX8O
— Texas Scorecard (@TexasScorecard) November 7, 2025
Texas can enforce its law prohibiting explicit sexual performances in front of children, according to a recent court decision. pic.twitter.com/sAOpxFBdCX
— Texas Scorecard (@TexasScorecard) November 7, 2025
The ruling from the three-judge panel tossed the 2023 decision from a trial court that blocked the law.
“While nude dancing receives some constitutional protection, ‘intentional contact between a nude dancer and a bar patron is conduct beyond the expressive scope of the dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the physical contact occurs while in the course of protected activity does not bring it within the scope of the First Amendment,’” they instructed.
The ruling could be a preliminary to a Supreme Court decision, as the 11th Circuit court recently ruled that a similar statute in Florida likely is problematic.
