U.S. District Judge Thomas Parker this week struck down a Tennessee law that put strict limits on drag shows as “unconstitutionally vague.” While many of us have objections to drag shows put on for young children, Judge Parker is right about this law being a threat to free speech. As I have said previously, the law is sweeping and vague, including barring a form of expression that is (in my view) protected under the First Amendment.
The Supreme Court has long held that “speech” protected under the First Amendment includes “expressive conduct.” Texas v. Johnson, 491 U.S. 397, 404 (1989). Expressive conduct includes dance because it is “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Spence v. Washington, 418 U.S. 405, 409 (1974).
The court found that this is content-based discrimination. Judge Parker wrote
“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. Miller v. California provides the standard for determining “obscenity” under the law.”
Judge Parker identifies a number of unconstitutionally vague terms. However, he also notes that the prior language of the statute is problematic in 2023 in a way that was not evident in 1987:
First, while including “male or female impersonators,” in a list with “topless dancers, go-go dancers, exotic dancers, strippers . . . or similar entertainers” may have escaped many readers’ scrutiny in 1987, it may not do so with ease in 2023. In 1987, homosexual intercourse was considered sodomy and was a crime in Tennessee21, “Don’t Ask Don’t Tell” had not been enacted (much less repealed)22 for our military, and same-sex couples did not have a recognized fundamental right to marry23. The phrase “similar entertainers” seems to refer to dancers traditionally associated with “adult oriented businesses.” In 1987, associating “male or female impersonators” in that category may have called for little or no concern. This Court views categorizing “male or female impersonators” as “similar entertainers” in “adult-oriented businesses” with skepticism. Regardless of the Tennessee General Assembly’s intentions, the AEA’s text criminalizes performances that are “harmful to minors” by “male or female impersonators,” and the Court must grapple with that text. The Court finds that this phrase discriminates against the viewpoint of gender identity—particularly, those who wish to impersonate a gender that is different from the one with which they are born.
The opinion below will likely infuriate many, but it is correct in my view. Many of us have written in support of the claims of bakeries, photographers, and web designers opposing both compelled and prohibited speech in the context of anti-discrimination laws. I am hopeful that the Supreme Court is finally ready to create a bright-line protecting such speech rights in the pending case of 303 Creative v. Elenis. However, this is a two-way street. You cannot demand the protection of speech with one hand while denying such expression with the other.
Judge Parker does not hold back in his well-based criticism of how this law was crafted: “This statute—which is barely two pages long—reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. The virulence of the AEA’s overbreadth chills a large amount of speech, and calls for this strong medicine.”
I will not go through all of the points in Judge Parker’s compelling opinion, but it is worth reading.
Here is the opinion: Friends of Georges v. Mulroy