Federal Judge Rules Tennessee Anti-Drag Law Unconstitutional

Tiny hateful people are trying to convert their small-mindedness into actual laws all around the nation. On the public’s dime, bigots are advancing bills targeting the free expression of anyone who doesn’t fall into the hetero container these asshats think everyone should fit into. At least twelve state legislatures have introduced bills designed to criminalize drag shows and other forms of expression most often utilized by those who fall outside of the two gender identities these supposed representatives of the people choose to recognize.

The laws are badly written because they cannot help but be. When you write laws targeting only certain people, it’s extremely easy — if not inevitable — to fall on the wrong side of the Constitution. Tennessee became the first state to pass a law criminalizing drag shows, something legislators tried (not so cleverly) to talk around by not actually utilizing that particular phrase, as this Associated Press article (republished by The Guardian) points out:

The Republican-dominated Tennessee legislature advanced the anti-drag law earlier this year, with several members pointing to drag performances in their hometowns as reasons it was necessary to restrict such performances from taking place in public or where children could view them.

Yet the word “drag” does not appear in the statute. Instead lawmakers changed the definition of adult cabaret to mean “adult-oriented performances that are harmful to minors”. Furthermore, “male or female impersonators” were classified as a form of adult cabaret, akin to strippers and topless, go-go and exotic dancers.

The law would have banned adult cabaret performances from public property or anywhere minors might be present. Performers who broke the law risked being charged with a misdemeanor or a felony for a repeat offense.

The law was supposed to have gone into effect on April 1st of this year. It never did because the group suing over the law, LGBTQ theatre company Friends of George’s, managed to secure a temporary injunction earlier this year.

It’s now permanent. Federal judge Thomas Parker has ruled the law unconstitutional in a 70-page opinion [PDF] that should help provide a blueprint for future constitutional challenges that will be triggered if bills in other parts of the nation are passed by governors as terrible as Governor Bill Lee. (Shout out to LGBTQ news source Los Angeles Blade for providing a copy of the ruling the Associated Press somehow couldn’t manage to share with its millions of readers.)

The opening of the decision says it all:

The Tennessee General Assembly enacted a statute criminalizing the performance of “adult cabaret entertainment” in “any location where the adult cabaret entertainment could be viewed by a person who is not an adult.” Plaintiff Friends of George’s, Inc. sued under 42 U.S.C. § 1983 to enjoin enforcement of that statute, alleging that it is an unconstitutional restriction on free speech under the First Amendment, as incorporated to the states by the Fourteenth Amendment of the United States Constitution.

[…]

After considering the briefs and evidence presented at trial, the Court finds that—despite Tennessee’s compelling interest in protecting the psychological and physical wellbeing of children—the Adult Entertainment Act (“AEA”) is an UNCONSTITUTIONAL restriction on the freedom of speech and PERMANENTLY ENJOINS Defendant Steven Mulroy from enforcing the unconstitutional statute.

The court points out the law is designed from the ground up to be abused to punish only certain people for failing to adhere to what these legislators (and the governor, apparently) believe to be within the realm of “normal” sexuality.

Section 39-17-901’s “harmful to minors” standard lowers the floor for criminal behavior, equipping law enforcement officers with even more discretion. The chance that an officer could abuse that wide discretion is troubling given an art form like drag that some would say purposefully challenges the limits of society’s accepted norms. And the AEA covers a wide geographical reach: “in a location where adult cabaret entertainment could be viewed by a person who is not an adult.”

The Court emphasizes that the fear of prosecution from law enforcement officers is not merely speculative but certainly impending. The Parties stipulate that Defendant intends to enforce the AEA. Moreover, the AEA, unlike the statutes in Ginsberg, Miller, and Davis-Kidd, criminally sanctions not the business operators but the performers themselves. The AEA also contains no textual scienter requirement, safe harbors, or even affirmative defenses—like parental consent—present in similar obscenity statutes as discussed more fully below.

The state tried to claim the law only targeted obscenity, which falls outside of constitutional protections. But not all obscenity is created equal, the judge points out. There are different standards and the law passed here is far too vague to possibly limit itself to only truly illegal obscenity.

Legal obscenity is an exceptionally high standard as one of its prongs requires that the speech “not have serious literary, artistic, political, or scientific value.” Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not obscene—speech receives less protection than political, artistic, or scientific speech.

The state also tried to salvage the law by saying it had copied much of the text from a law that had been on the books since 1987. But that can’t save it from a 2023 review. And the old law regulated businesses, ensuring compliance with zoning laws. This one targets performers, individuals with free speech rights, rather than business entities with fewer speech protections. Not only that, the court notes, homosexual sex was still criminalized in 1987, so just saying that something has been on the books for years isn’t really a slam dunk argument the state seems to think it is.

Here’s where the judge obliterates the law and makes it clear what he thinks about what the state says the intent of the law is and what the state’s true intent is.

Regardless of the Tennessee General Assembly’s intentions, the AEA’s text criminalizes performances that are “harmful to minors” by “male or female impersonators,” and the Court must grapple with that text. The Court finds that this phrase discriminates against the viewpoint of gender identity—particularly, those who wish to impersonate a gender that is different from the one with which they are born. An illustration might be helpful.

Assume an individual, who identifies as male, holds a guitar and wears an “Elvis Presley” costume that is revealing without being legally obscene, but indecent enough to be potentially
harmful to minors. If this individual “performs” by telling jokes in Elvis’ voice in “a location
where adult cabaret entertainment could be viewed by a person who is not an adult,” it is unclear whether this person would violate the AEA. One could argue, as Defendant does, that the individual would qualify as a “similar entertainer,” who belongs in the same category as “topless dancers, go-go dancers, exotic dancers, strippers.” But is that necessarily so? The similar entertainers’ common thread—aside from being traditionally associated with “adult-oriented establishments”—is that they are all dancers of a sort. What if the Elvis impersonator does not dance? Does this performance have any redeeming value to a five-year-old? It remains
unclear whether that performer would violate the AEA.

But if a person who identifies as a female wore the same Elvis costume and engaged in the same performance, she would clearly be a male impersonator. The AEA is viewpoint discriminatory in that it will more likely punish the latter, but not the former, for wearing the same costume and conducting the same performance.

Finally, the court finds the legislature passed the unconstitutional law for a constitutionally impermissible purpose — something that can clearly be gleaned from the legislative record, no matter what the government says now in the law’s defense:

This District Court does not find that the Tennessee General Assembly’s predominate concerns were “increase in sexual exploitation.” Rather, the Court finds that their predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born. Defendant’s identification of “increase in sexual exploitation” as the legislature’s predominate concern in passing the AEA draws not from legislators, but from Ms. Starbuck’s testimony. (“It’s no wonder we have skyrocketing mental health crisis amongst our confused and vulnerable youth with more sexual exploitation crimes reported than ever before.”). The only other time “sexual exploitation” was mentioned in the legislative transcript was in Ms. Starbuck’s testimony. (“[Children] are seeing adults clap every time an article of clothing is removed, the adults are thunderously clapping. And so they are making associations that when you take your clothes off, you’re rewarded money . . . But continuing that behavior is sending that message to children and it[’]s normalizing that sexual exploitation.”) On the other hand, the record is replete with references to the expressive conduct of “male or female impersonators,” “drag shows,” “Pride” events, and more. The Court’s determination that the AEA was enacted for an impermissible purpose is broad enough to reject the notion that the AEA is aimed not at the content of expressive speech but rather at its secondary effects.

The judge signs off with this: a word of warning to the state’s taxpayers, who not only paid to have this stupid law written and enacted, but paid to have it defended in court by people who attempted to salvage it by undercutting the anti-drag “for the children” sales pitch offered by legislators when passing the law.

Tennesseans deserve to know that their State’s defense of the AEA primarily involved a request for the Court to alter the AEA by changing the meaning of “minors” to a “reasonable 17-year-old minor.” In other words, while its citizens believed this powerful law would protect all children, the State’s lawyers told the Court this law will only protect 17-year-olds.

Since many of these bills are cut from the same unconstitutional cloth, it’s unlikely those pending in other state legislatures will survive a challenge should they manage to become law. But I guarantee you the shitty people pushing these laws won’t learn anything from this decision. And they’re going to make taxpayers subsidize the defense of their petty hatred.