Free speech and all that drag

Under a federal judge’s ruling in Tennessee this month, the public drag shows must go on.

On June 2, U.S. District Judge Thomas Parker struck down as unconstitutional the nation’s first law restricting public drag performances where children may be present. Parker ruled the measure infringed on performers’ First Amendment rights.

Republican state Sen. Jack Johnson late last year introduced the bill limiting “adult cabaret” performances in public spaces to protect children. Gov. Bill Lee signed it into law in March after the measures received support from all state Republican senators and representatives.

“I am not trying to ban drag shows, and I’m not trying to take away anyone’s First Amendment rights,” Johnson told The Washington Post. “But you should be able to take your kids to a public park or library and not be surprised by seeing sexually explicit entertainment taking place.”

In his 70-page opinion, Parker deemed the law “both unconstitutionally vague and substantially overbroad” with “discriminatory enforcement.” The Trump-appointed judge differentiated between expression that is sexually explicit and sexually obscene.

“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,” he wrote.

The law says nothing about sexual orientation or gender identity, defining “adult cabaret” as a variety of male and female performances, including “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest.” Those in violation could be charged with a misdemeanor and up to $2,500 in fines. Repeat offenders could be charged with a felony with a sentence of up to six years in jail.

In March, a Memphis LGBT theater group, Friends of George’s, sued the local prosecutor and the Tennessee governor to block enforcement of the cabaret law. Despite being named as a defendant, Shelby County District Attorney Steve Mulroy—a registered Democrat—claimed he has “never been happier to lose a lawsuit.”

“I’ve always thought that the drag show bill was a solution in search of a problem,” Mulroy said, adding that “chilling free expression and making the LGBT community feel targeted has done more harm than good.”

Tennessee Attorney General Jonathan Skrmetti plans to appeal Parker’s ruling.

“That bill was created to protect children for the state,” Lee told PBS. “I’ll continue to do that whenever we can.”

Family Action Council of Tennessee President David Fowler said that the judiciary needs to stop stretching the First Amendment’s free speech clause to cover conduct that goes beyond speaking one’s opinion.

“As long as conservatives refuse to bring members of the federal judiciary back to the original public meaning of the words in the free speech clause … they should expect to keep losing,” Fowler said in an email. “Those who framed the Constitution knew the difference between speech and conduct.”

Fowler said that the idea that the First Amendment protects sexually explicit, public drag performances is nonsense. In an April 13 essay, he pointed to a 1991 U.S. Supreme Court ruling upholding the regulation of strip clubs and historic common law principles criminalizing public nudity and indecency.

“There is no way on God’s green earth … that the free speech and press clause of the First Amendment, adopted in 1791, could ever be interpreted to protect what was a crime at common law,” Fowler wrote. “Nothing in the First Amendment, interpreted according to its history and the common law, protects salacious conduct.”