Rules committee recommends HB 2589 despite lawyer warning it likely fails strict scrutiny
February 09, 2026 | 2026 Legislature Arizona, Arizona
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The Arizona House Rules Committee voted to recommend House Bill 2589 as constitutional and in proper form after hearing from the rules attorney that the measure raises serious constitutional concerns.
Tim Fleming, the committee's rules attorney, told members HB 2589 "makes it a class 4 felony" to knowingly allow a minor to see a drag show, permit a minor to enter or remain where a drag show is visible, or perform a drag show in view of a minor. Fleming said those provisions "implicate the First Amendment" because they regulate expressive conduct based on content and also raise Fourteenth Amendment due-process issues tied to parental liberty (SEG 286–301, SEG 303–313).
Why it matters: Fleming said content-based restrictions are presumptively unconstitutional and typically trigger a strict-scrutiny review that is "nearly impossible to sustain," even though protecting children is a compelling governmental interest. He recommended a floor amendment to narrow and clarify the bill's scope (SEG 326–333).
Committee debate. Representative De Los Santos explained his Nay vote, saying the rules attorney had made clear the bill would fail strict scrutiny and calling it "wildly overly broad" and a First Amendment violation (SEG 366–375). By contrast, members including Vice Chair Carter expressed support and noted the sponsor was working on amendments; Carter said the sponsor's willingness to amend made him comfortable voting Aye (SEG 384–401).
The vote. The roll call recorded Representative Carbone Aye, Representative Contreras Nay, Representative De Los Santos Nay, Speaker Montenegro Aye, Representative Willoughby Aye, Vice Chair Carter Aye, and Chairman Hendricks Aye; the clerk announced "5 ayes, 2 nays, 1 absent" (SEG 356–366, SEG 401–406).
What’s next. The rules attorney and members discussed potential floor amendments to narrow the bill; the sponsor's office said it was preparing changes. The committee's recommendation will move the bill to the next stage where any constitutional challenges and proposed amendments can be addressed.
Tim Fleming, the committee's rules attorney, told members HB 2589 "makes it a class 4 felony" to knowingly allow a minor to see a drag show, permit a minor to enter or remain where a drag show is visible, or perform a drag show in view of a minor. Fleming said those provisions "implicate the First Amendment" because they regulate expressive conduct based on content and also raise Fourteenth Amendment due-process issues tied to parental liberty (SEG 286–301, SEG 303–313).
Why it matters: Fleming said content-based restrictions are presumptively unconstitutional and typically trigger a strict-scrutiny review that is "nearly impossible to sustain," even though protecting children is a compelling governmental interest. He recommended a floor amendment to narrow and clarify the bill's scope (SEG 326–333).
Committee debate. Representative De Los Santos explained his Nay vote, saying the rules attorney had made clear the bill would fail strict scrutiny and calling it "wildly overly broad" and a First Amendment violation (SEG 366–375). By contrast, members including Vice Chair Carter expressed support and noted the sponsor was working on amendments; Carter said the sponsor's willingness to amend made him comfortable voting Aye (SEG 384–401).
The vote. The roll call recorded Representative Carbone Aye, Representative Contreras Nay, Representative De Los Santos Nay, Speaker Montenegro Aye, Representative Willoughby Aye, Vice Chair Carter Aye, and Chairman Hendricks Aye; the clerk announced "5 ayes, 2 nays, 1 absent" (SEG 356–366, SEG 401–406).
What’s next. The rules attorney and members discussed potential floor amendments to narrow the bill; the sponsor's office said it was preparing changes. The committee's recommendation will move the bill to the next stage where any constitutional challenges and proposed amendments can be addressed.
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