From Opinion No. 2025-13, released Aug. 29:
- Is a performance by an individual dressed in drag included in the definitions of "obscene material" in title 21, section 1024.1?
- 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)?
- 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)?
- 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"}.
