Tennessee’s Anti-Drag Law Ruled Unconstitutional

LGBTQ activists march past the Tennessee State Capitol in Nashville in February. (John Amis/Images for Human Rights Campaign/AP via The Atlanta Voice) Photo Source: LGBTQ activists march past the Tennessee State Capitol in Nashville in February. (John Amis/Images for Human Rights Campaign/AP via The Atlanta Voice)

In a strongly worded, 70-page defense of the First Amendment, U.S. District Court Judge Thomas Parker of the Western District of Tennessee ruled that a State law that limits public drag shows was unconstitutional. Parker found the bill overbroad, too vague, and not narrowly tailored enough to achieve the compelling state interest of protecting minors. He barred authorities from enforcing it because it could lead to different outcomes, depending on individual assessments of what is and is not obscene.

Writing, “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. That freedom is of first

importance to many Americans such that the United States Supreme Court has relaxed

procedural requirements for citizens to vindicate their right to freedom of speech, while making

it harder for the government to regulate it. This case is about one such regulation.”

The quote from Parker, who was appointed by ex-President Donald J. Trump, references a Tennessee law passed last March that criminalized the performance of “adult cabaret entertainment” in “any location where it could be viewed by a person who is not an adult.” Plaintiff Friends of George, Inc., (Friends) a non-profit theatre company in Memphis that “produces original theatrical content for the LGBTQ+ community,” sued Steven J. Mulroy, the District Attorney General of Shelby County to enjoin enforcement of the law as “an unconstitutional restriction on free speech under the First Amendment…”

Parker’s opinion provided the legislative history of Tennessee’s Adult Entertainment Act (AEA). He said the Bill’s sponsors sought to ban “performances that are considered harmful to minors,” that take place on public property or in private venues that do not ensure that children are not present.” Witnesses who spoke in favor of the AEA said, “…early sexualization and exposure to explicit adult entertainment harms children because it grooms them into accepting adult sexual behavior as normal, healthy, and even celebrated while it encourages them to simulate and participate in high-risk sexual behaviors.” One opponent of the AEA, however, noted that “drag performers “ha never shown any more skin than a Titans cheerleader on a Sunday afternoon.”

Judge Parker issued a temporary restraining order against enforcement of the law on March 27. A bench trial was held from May 22-23. Parker’s finding of unconstitutionality followed on June 2. His ruling referenced the legislative history and said, “…the Court finds that the legislative transcript strongly suggests that the AEA was passed for an impermissible purpose.”

Parker’s opinion provides his conclusions of law. First, he confirmed that Friends has standing for a “facial challenge of the AEA.” He said that strict scrutiny would be used to determine AEA’s constitutionality and under this standard, he found “content-, and viewpoint-based restriction(s) on speech.” He said, “The AEA was passed for the impermissible purpose of chilling constitutionally-protected speech, and the secondary-effects doctrine does not save it from strict scrutiny review.” He concluded, “Defendant has not met his burden of proving that the AEA is both narrowly tailored and the least restrictive means to advance Tennessee’s interest.”

Much of the controversy about the AEA centers on the degree of scrutiny that must be applied to the law. Plaintiffs argued for strict scrutiny, which would find the law invalid unless the government could demonstrate it is necessary to protect a “compelling state interest” and is “narrowly tailored” to achieve that interest by the least restrictive means possible. Defendants argue for intermediate scrutiny, a standard Cornell University says “requires the government to only advance a substantial or important government interest in a way that does not substantially burden more speech than necessary.”

The judge found the bill “unconstitutionally vague and substantially overbroad.” He said that its “harmful-to-minors standard fails to provide fair notice of what is prohibited, and it encourages discriminatory enforcement.” He did not accept defendant’s proposed narrowing of the law, which “would require the Court to rewrite the statute, and to violate the principle of separation-of-power.”

Additional arguments by the defendant challenged Friends’ standing to bring the suit because it constituted a “pre-enforcement challenge,” or a review of the law before anyone was accused of violating it. Parker denied this argument because the U.S. Supreme Court grants standing to individuals who “are subject to a threat of enforcement.” Plaintiff meets this requirement because if the law were to be enforced, its performers could be prosecuted “under a plain reading of the AEA.” After reviewing various types of standing, Parker granted “associational standing” to Friends because he found there is a “substantial probability” of engaging in conduct that is “arguably affected with a constitutional interest.”

Next, Parker turned to the merits of the arguments of both parties. Plaintiff said the AEA is a “content-based, view-point-based, restriction on speech that fails strict scrutiny. Defendant says the law is only a “time, place, and manner restriction that should be analyzed under intermediate scrutiny,” even though it could pass under a higher standard.

The court agreed with the plaintiff. He found the law is “a facial, content-based restriction” because it “targets speech based on its communicative content.” The opinion also notes that “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 court found the Tennessee law to be “viewpoint-based,” which Parker wrote was “based on the ‘specific motivating ideology or the opinion or perspective of the speaker’ (and thus) is a ‘more blatant’ and ‘egregious form’ of content discrimination.”

Perhaps forecasting that the Supreme Court would disagree with its analysis, Parker’s opinion offers an alternative reasoning for his conclusion. He said the AEA was “based on an impermissible purpose,” because of the legislative history that led to its passage and its wording. It is overbroad and “can chill speech that is constitutionally protected.” The AEA is “of alarming breadth,” Parker wrote.

For all these reasons, Parker found that strict scrutiny must be applied. Although the parties agreed that Tennessee has a compelling interest in “protecting the physical and psychological well-being of minors,” the law is simply not narrowly tailored enough, overbroad, and too vague to achieve that interest.

Given recent events, including the Florida law signed by Governor DeSantis last month that targets drag shows, this opinion promises to be frequently cited in the future.

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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