Oklahoma AG on the First Amendment and Drag Shows

From Opinion No. 2025-13, released Aug. 29:

1. Is a performance by an individual dressed in drag included in the definitions of “obscene material” in title 21, section 1024.1?
2. Is a performance by an individual dressed in drag included in the definitions of “adult performance” in title 21, section 1024.6(A)(1) (Supp.2025)?
3. Does a performance by an individual dressed in drag, in view of a minor in a public place, violate the provisions of title 21, section 1024.6(B)(1) (Supp.2025)?
4. Is a performance by an individual dressed in drag protected speech under the First Amendment? If so, under what circumstances can said speech be regulated by the state or other political subdivisions? …

The answer to all four questions depends upon whether the drag performance contains “obscene material” …. The definition of “adult performance” … requires the performance to contain “obscene material.” For a performance to be prohibited by section 1024.6(B)(1), it likewise must also contain “obscene material.” Finally, the performance is not protected by the First Amendment to the extent it contains “obscene material.” Miller v. California (1973). As a result, a drag performance violates Oklahoma law only if it contains “obscene material.” …

Under Oklahoma law, “obscene material” includes any representation, performance, depiction, or description of sexual conduct that meets three criteria: (a) it is patently offensive as judged by the average person applying contemporary community standards; (b) it appeals to prurient interest in sex as its dominant theme; and (c) it lacks serious literary, artistic, educational, political, or scientific value when taken as a whole.

Importantly, the definition of “obscene material” as established by the Miller test and adopted in Oklahoma first requires the performance to contain “sexual conduct.” Oklahoma’s statutory definition of “sexual conduct” comprises the following acts: sexual intercourse, oral or anal sodomy, masturbation, sadomasochistic abuse, excretion in a sexual context, and exhibiting genitals or pubic areas {[and, e]ffective November 1, 2025, “acts of sexual activity with an animal” and “exhibiting genitalia, breast, or pubic area for the purpose of the sexual stimulation of the viewer”}.

Thus, for a drag performance to meet the definition of obscene material, it must first contain one of these enumerated acts of sexual conduct. If it contains such an act, then a drag performance must be reviewed to determine whether it predominantly appeals to a prurient interest in sex, is patently offensive according to contemporary community standards, and lacks serious literary, artistic, educational, political, or scientific value. {Prurient Interest means “[a] morbid, unhealthy fixation with sex, nudity, or obscene or pornographic materials.”} …

{One U.S. District Court has previously held that drag shows are not expressive conduct protected by the First Amendment. But this opinion is no longer good law because a divided Fifth Circuit panel recently reversed it finding the proposed drag show “communicated a message” of “support for the LGBT+ community,” which was “enough to implicate the First Amendment.” Spectrum WT v. Wendler (5th Cir. 2025). Existing Oklahoma law, however, punishes all types of adult performances in front of minors or in a public place that contain obscene material, regardless of whether drag is involved. Therefore, as it relates to existing Oklahoma law, the relevant inquiry is whether the drag performance contains obscene material.}

{Failing to follow the Miller test has caused other states and cities to run afoul of the First Amendment as it relates to drag performances. For example, Texas’s ban on “sexually oriented performances” violated the First Amendment because, among other things, Texas law failed to include all the criteria identified in the Miller test for obscenity. Woodlands Pride, Inc. v. Paxton (S.D. Tex. 2023). Similarly, a Utah city’s refusal to issue a permit for a drag show in a public park violated the First Amendment because there was “no evidence that the Allies Drag Show was anticipated to be anywhere close to satisfying even one prong of the Miller standard establishing whether a work is legally obscene.” S. Utah Drag Stars v. City of St. George (D. Utah 2023).

On the other hand, Tennessee’s Adult Entertainment Act that “(1) incorporate[d] the Supreme Court’s three-part obscenity test from Miller v. California and (2) modifie[[d] it to apply to minors” was found to be consistent with the First Amendment. Friends of George’s, Inc. v. Mulroy (6th Cir. 2024). Oklahoma’s new statute, title 21, section 1024.6, simply incorporates Oklahoma’s prior definition of obscene material that adopts the Miller test. Therefore, Oklahoma’s obscenity laws, including section 1024.6, are consistent with the Miller test and the First Amendment.

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