Spectrum WT v. Wendler is one of the easiest First Amendment cases the federal courts heard this year — or in any other year. The question is whether a government official can ban drag shows.

The obvious answer to this question is no. The government cannot ban drag for the same reason it cannot ban stand-up comedy, musical theatre, kabuki, noh, opera, koothu, or mime. If you really need an explainer on why the First Amendment doesn’t permit the government to ban an entire theatrical style, I wrote that piece here.

As the Supreme Court said in Southeastern Promotions v. Conrad (1975), a strikingly similar case about a municipal government’s attempt to bar performance of the musical “Hair,” “only if we were to conclude that live drama is unprotected by the First Amendment — or subject to a totally different standard from that applied to other forms of expression — could we possibly find no [constitutional violation] here.”

The good news for proponents of free speech is that, on Monday, the United States Court of Appeals for the Fifth Circuit handed down its decision in Spectrum WT, and that decision reached the correct conclusion that no, the government may not ban drag shows.

But for the drag performers at the heart of the Spectrum WT case, this victory must taste like ash. Though the courts eventually got around to ruling that the First Amendment protects gay people, it took them more than two years to do so. The government succeeded in barring a performance that is protected by the First Amendment for more than half of an entire presidential term.

Most of the reason why can be summarized in two words: “Matthew Kacsmaryk.” Spectrum WT arises out of the president of a public university near Amarillo, Texas’s attempt to ban drag shows at that school. And the only federal trial judge in Amarillo is Kacsmaryk, a notorious social conservative and prude who is best known for his failed attempt to ban the abortion drug mifepristone.

There are other villains in this story as well. Though the Fifth Circuit eventually got around to saying that gay people have free speech rights, too, it rejected multiple requests to expedite the case or to temporarily block Kacsmaryk’s decision allowing the drag ban while this litigation was ongoing. The Supreme Court also refused to intervene in a May 2024 decision.

And it’s not even clear that this saga is over. Judge James Ho, a professional troll that President Donald Trump appointed to the Fifth Circuit in 2018, dissented from the decision in Spectrum WT. The university president who lost this case may appeal to the full Fifth Circuit, which has a

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