The Conversation: Why a federal judge blocked Tennessee's drag show ban

The drag shows will go on — at least for now.

Earlier this summer, Judge Thomas Parker, a Trump-appointed federal judge, ruled Tennessee’s Adult Entertainment Act in violation of the First Amendment’s free speech provision.

The act was passed by the Legislature and signed into law in March. It gained national attention by taking direct aim at performances by “male and female impersonators.”

Parker provided several grounds for concluding the law was unconstitutional. Using my experience as a First Amendment scholar, here’s how I see Judge Parker reaching that conclusion and what it means in actual practice.

The First Amendment of the U.S. Constitution protects, among other things, free speech.

As Parker noted at the beginning of his opinion, “Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.”

Freedom of speech protects more than just speech, in the colloquial sense. It also protects many other ways that people express themselves, such as by waving a flag, marching in a parade or dancing on a stage.

Drag shows typically consist of various forms of protected speech, like dancing, acting, lip-syncing, joke-telling and displaying elaborate outfits designed to send messages.

Not all speech is protected under the First Amendment. Freedom of speech does not include the right to engage in, for example, perjury, defamation or threats of violence.

Obscenity is also forbidden, but has been defined narrowly by the courts. Something is legally obscene, they have ruled, only if a reasonable person applying contemporary community standards would find it appeals to prurient interests, features patently offensive content and lacks serious literary, artistic, political or scientific value.

As Parker noted, “There is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law.” He said the law imposes “an exceptionally high standard.”

The precise boundaries of what counts as legal obscenity are vague. Protection has been extended to many kinds of sexually explicit material because litigants have convinced courts of its literary, artistic, political or scientific value.

Tennessee’s Adult Entertainment Act would have made it a crime “to perform adult cabaret entertainment” on “public property” or anywhere it “could be viewed by a person who is not an adult.” The act defined “adult cabaret entertainment” to include performances by “male or female impersonators” that could be deemed “harmful to minors.”

The act’s definition of “harmful” was, however, based on U.S. Supreme Court’s criteria developed for the general citizenry, not specifically for minors. It attempted to prohibit speech lacking literary, artistic, political or scientific value specifically “for minors.”

Parker determined that the law targeted more than just legally obscene speech, that it also targeted speech protected under the First Amendment. He concluded that the Tennessee law discriminated based on both the speech’s content and its viewpoint.

He concluded that it discriminated based on content because it specifically targets “adult-oriented performances that are harmful to minors” and discriminates based on viewpoint because it specifically targets the speech of “male and female impersonators.”

Laws that discriminate based on viewpoint are subject to the highest standard of judicial review, known as strict scrutiny, which requires laws to be “narrowly tailored” and “well defined.”

Parker concluded that the law was neither. On this basis, he also concluded that it failed to meet the high standard of review and was unconstitutional.

On any plausible reading of the law, he ruled, it “criminally sanctions qualifying performers virtually anywhere,” including those performing in “private events at people’s homes or arguably even age-restricted venues.” He also wrote that the law appeared designed for the “impermissible purpose” of “chilling constitutionally-protected speech.”

From The Conversation, an online repository of lay versions of academic research findings found at https://theconversation.com/us. Used with permission.


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