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First U.S. law banning public drag shows ruled unconstitutional

Photo from usmarshals.gov

NASHVILLE (BP) – A federal district judge has ruled unconstitutional a Tennessee law prohibiting gender-bending drag performances in front of minors, which had been the only such law in the nation.

Tennessee’s Adult Entertainment Act (AEA) violates constitutionally protected freedom of speech, U.S. District Judge Thomas Parker ruled late June 2 in the Western District Court of Tennessee.

“The AEA’s regulation of ‘adult-oriented performances that are harmful to minors under § 39-17-901’ does target protected speech, despite Defendant claims to the contrary,” Parker wrote in the 70-page decision. “Whether some of us may like it or not, the Supreme Court has interpreted the First Amendment as protecting speech that is indecent but not 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,” Parker wrote, referencing Ashcroft v. A.C.L.U. of 2002. “It is also well established that speech may not be prohibited because it concerns subjects affecting our sensibilities,” Parker quoted Ashcroft v. A.C.L.U.

Southern Baptists’ stance against sexually explicit material and entertainment is well established. The Baptist Faith and Message 2000, Southern Baptists’ statement of faith, says, “In the spirit of Christ, Christians should oppose racism, every form of greed, selfishness, and vice, and all forms of sexual immorality, including adultery, homosexuality, and pornography.”

Friends of George’s, Inc., a venue that produces drag shows, comedy sketches and plays in Memphis, challenged the Tennessee law, taking Shelby Country District Attorney Steven Milroy to court. Parker’s June 2nd ruling followed his initial March 30th stay on the law that was set to take effect April 1.

Mulroe defended the law as a move to protect children from obscenities, but Parker disagreed.

“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,” Parker wrote, “the Adult Entertainment Act (“AEA”) is an unconstitutional restriction on the freedom of speech and permanently enjoins Defendant Steven Mulvoy from enforcing the unconstitutional statute.”

Tennessee was the first state to enact such a law, standing out among more than a dozen states that attempted such legislation but failed to secure passage before their 2023 legislative sessions ended.

Sen. Jack Jackson, a Republican from Franklin who sponsored the bill, had said it was designed to prohibit “sexually explicit adult-themed entertainment” from being performed in front of children. But those who opposed the law said its language was too vague to determine which shows would be illegal.

“If someone wants to have a drag show that is totally fine, my legislation doesn’t do anything to change that,” Jackson has said. “It’s just while you’re having your drag show, you can’t simulate sex acts.”

Idaho, Kansas, Missouri, Oklahoma, Texas, Kentucky, West Virginia, and Nebraska are among states that attempted similar bills in 2023, including bills prohibiting drag shows and cabaret performances, and a Missouri bill that would have outlawed drag queen story hours targeting minors.

Arkansas’ attempt to ban public drag shows was amended to drop references to drag shows, instead prohibiting “adult-oriented” shows from public spaces. Arkansas Gov. Sarah Huckabee Sanders signed the bill into law Feb. 27.