Tennessee Federal Judge Declares State’s Anti-Drag Show Law Unconstitutional

The law would have banned adult cabaret performances from public property or anywhere minors might be present.

John Amis/AP Images for Human Rights Campaign via AP, file
Drag artist Vidalia Anne Gentry at a news conference held to draw attention to anti-drag bills in the Tennessee legislature. John Amis/AP Images for Human Rights Campaign via AP, file

Tennessee’s first-in-the-nation law designed to place strict limits on drag shows is unconstitutional, a federal judge says.

The law is both “unconstitutionally vague and substantially overbroad” and encourages “discriminatory enforcement,” according to the ruling late Friday by Judge Thomas Parker, who was appointed by President Trump.

“There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” Judge Parker said.

“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 said.

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.

Judge Parker used the example of a female performer wearing an Elvis Presley costume and mimicking the iconic musician who could be at risk of punishment under the drag law because they would be considered a “male impersonator.”

Friends of George’s, a Memphis-based LGBTQ+ theater company, filed a complaint in March, saying the law would negatively impact them because they produce “drag-centric performances, comedy sketches, and plays” with no age restrictions.

“This win represents a triumph over hate,” the theater company said in a statement Saturday, adding that the ruling affirmed their First Amendment rights as artists.

“Similar to the countless battles the LGBTQ+ community has faced over the last several decades, our collective success relies upon everyone speaking out and taking a stand against bigotry,” the group said.

The majority leader of the Tennessee state senate, Jack Johnson, a Republican who was one of the law’s main sponsors, said he was disappointed with the ruling.

“Sadly, this ruling is a victory for those who support exposing children to sexual entertainment,” Mr. Johnson said, adding that he hoped the state’s attorney general will appeal the “perplexing ruling.”

Initially, the complaint listed Governor Lee, Attorney General Jonathan Skrmetti and the district attorney of Shelby County, Steven Mulroy as defendants. But the plaintiffs later agreed to dismiss the governor and top legal chief — although Mr. Skrmetti continued to represent Mr. Mulroy for this case.

A spokesperson for both Messrs. Skrmetti and Mulroy did not immediately respond Saturday to requests for comment on Judge Parker’s ruling.

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

Yet the actual word “drag” doesn’t appear in the statute. Instead lawmakers changed the state’s 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 or topless dancers.

The governor quickly signed off on the statute and it was set to take effect April 1. However, to date, the law has never been enforced because the federal judge had sided with the group that challenged the statute in March, and he temporarily blocked the law.

Judge Parker also cited how the law’s sponsor, state Representative Chris Todd, had previously helped lead an effort to block a drag show in his district before introducing the drag ban proposal. Mr. Todd later confirmed that he hadn’t seen the performance, but nevertheless pursued legal action to stop the show and the event was held indoors with an age restriction.

This incident was among the several reasons to believe that the anti-drag law was “geared towards placing prospective blocks on drag shows — regardless of their potential harm to minors,” Judge Parker wrote.

The New York Sun

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