A Drag on Free Speech: Federal Court Strikes Down Tennessee Law on Cabaret Performances

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was considered sodomy and was a crime in Tennessee21, “Don’t Ask Don’t Tell” had not been enacted (much less repealed)22 for our military, and same-sex couples did not have a recognized fundamental right to marry23.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

62 thoughts on “A Drag on Free Speech: Federal Court Strikes Down Tennessee Law on Cabaret Performances”

  1. I am having a truly hard time understanding the drag queen problem. Is the ban for all shows? Even for adults? I have never seen a drag Queen show and have zero idea what it entails. Yet, I am having a very hard time why adults cannot choose their entertainment as they see fit. This to me is a very fitting first amendment issue. Why does this version of entertainment get singled out? Because it makes someone uncomfortable? Because it is considered odd or even deviant?

    So consider this one fact, drag has been part of entertainment since at least the ancient Greeks. It is a time honored tradition that men played women on stage when women were not allowed. Yet, even if we discard that fact and only look to modern entertainment, it still has had a place within modern entertainment at the top tiers. For those of you that are not old enough to remember. Milton Berle, Flip Wilson, Dustin Hoffman, Angelina Jolie, John Travolta, Robin Williams, Nathan Lane, Ruth Buzzi, Wesley Snipes, Tony Curtis, Jack Lemmon, Jared Leto, Hugo Weaving, and Guy Pierce have all had major movie rolls dressed in drag.

    So what is the problem? The children? Of course! Now that I understand, but even that must have levels within it. It is a tough choice for parents to deal with this for their children. However, even this must have levels of understanding. A man can dress as a woman for comedic purposes and women dress as male characters for school plays often. Think of Halloween costumes and how many dresses as boys or girls that were the other sex. I think the worry is that a given set of people with an agenda will push their lifestyle choices on children without the children having an the wherewithal to make informed choices.

    So split the difference and create a law for underage children in schools and fight that one out for a different day. Regardless of how one feels about the drag show in general (I have no opinion), leave them to the adults that enjoy them.

    1. So split the difference and create a law for underage children in schools and fight that one out for a different day. Regardless of how one feels about the drag show in general (I have no opinion), leave them to the adults that enjoy them.

      Quiet Man,
      I believe you asked and answered your own original question. The controversy regarding drag performers has nothing to do with people dressing in drag. I grew up with 4 sisters and a mother in our home. On Halloween, because we didn’t have the money to buy costumes, I would get my costume out of one of their closets. I had no problem dressing in “drag”. There are two issues with drag shows that I see. One is how drag shows being performed with minors have evolved into performances one would expect to see in adult entertainment only venues.

      The second issue involves the trans movement. Yes, a mature adult should be expected to understand the difference between a drag performer and an individual identifying as trans. Children on the other hand are being bombarded with both worlds and they lack the capacity to understand the distinction. So when children are subjected to sexualized drag performances outside of school and then subjected to sexualized content in school libraries and classrooms, often involving lessons that where an adult has them questioning their gender identity, they are not mature enough to process it all.

      In considering legislation, I would err on the side of protecting minors from any of this in school. Zero tolerance. Leave these discussions to the parents/guardians.

    2. I am not aware of a single law banning drag shows.

      All the laws being attacked right now constrain adults in their activities involving CHILDREN.

      Personally I would prefer that was left to PARENTS.

      But we have LOTS of laws restricting what Adults can do with children today.

      Children can not drive cars,
      sign binding contracts,
      Buy or consume alcohol
      buy or consume pronography.
      get tattoos,
      Consent to medical procedures.

      and long list of other things.

      Again I would prefer that we left this up to parents.
      But we have already accepted that the law can constraint adults in their dealings with children in ways that the law can not constrain adults in their dealings with other adults.

      What you claim to be “splitting the diffeence” is exactly what republicans have done and been excoriated for.

  2. Yet we know obscenely so when we see it but grown men getting their rocks of isnt? So they dress up as women that gets them auroused….then they go by kids for even more aueousal…..we used to kill off perverts like tgat! And it’s not too late too!

    1. Indeed the county who didn’t look into the lady and her back pack not the dude we came up on me and my kid or the people who stole our solar….non the off the hook! Let’s find the lady and her back pack. You have my consent.! I believe you are going to find a pervert….my bike brother who they thought gay…but he’s a murdering pervert not just gay. He liked the arousal…..and that’s the difference between simply gay…..attracted and the perverts who make an unsafe world….their ability to control their arousal….how many innocent people are buried in my land because he couldn’t control his aurosal? But we gotta beat the odds there….God forbid their butcher is actually a butcher? And I’m suppose to say nothing. Lady with the back pack! Said enough!

  3. Darn, that means also banning the Carol Burnette Show and MASH reruns!

  4. Children and sex should be kept far apart. I don’t see why that is so hard to understand. Here we go round the mulberry bush again with our postmodernist Alfred E Newman What, me worry? philosophy. I trust this case or others like it will make it to the Supreme Court and sanity will eventually prevail.

  5. Maybe in 1960 or even 1980 it was still funny or entertaining or somehow a novelty for men to dress up in offensive stereotypes of women and gay men and make a mockery of them. La cage au folle. But it’s not now.

    What would people do if there suddenly were lots of shows in blackface. How about shows and parades mocking the disabled? Or Jews? There used to be plenty of this in vaudeville. Why are any people going to see this crap? Why would anyone bring children to it. (And have you noticed the recent Catholic mockery?)

    Is the singing or dancing or humor or beauty so outstanding? Rarely. What’s the difference between this stuff and, say, circus clowns or a freak show (are “real” freak shows popular these days? Lady with a beard, fat man, elephant man, conjoined twins in a cage, etc.?) This is entertainment? To the extent there’s something sexually titillating, it’s truly juvenile… and well there’s your answer. Pathetic.

    Just. Stop. Going. Stop reacting to these sadsacks do explain to normal people why this is ugly and inappropriate, not cute or funny. These are emotionally unhealthy people (and yes, often sexually perverted people) who are desperate for attention that they couldn’t get otherwise. Stop giving it to them.

    1. Men dressing in drag, with makeup, etc. are not mocking women–they are celebrating female beauty. Some of them impersonate specific women, like Liza Minnelli. Imitation is the sincerest form of flattery. I’m a woman, and I don’t find drag queens offensive in the least. They wear more make up and fancier clothes than I do, and they are funny. Blackface, especially blackface minstrielsy, IS offensive to black people, not just because of black paint and huge lips, but especially when they mispronounce the English language and wear clothes with loud patterns. There’s a huge differnce between blackface minstrielsy, drag shows and the freak shows of the past. Have you seen Tod Browning’s film “Freaks”? Exploiting people born with issues, like Siamese twins, or dwarfs, or people with microcephaly (also called “pinheads” because of their small skulls), or people born without arms or legs, or women with hormone problems who grow beards, is cruel. There is no comparison between these things and drag shows, except to those who are narrow minded.

      1. Gigi,

        No, I think you’re just another Anti-American Hating Satanic Worshiping Creep Celebrating acts of Sodomy type behavior such as publicly fagg*ot Pedos exposing their Junk in front of very very young kids like the reports out of Tempe Arizona today by people like Drew Hernandez.

        You people would likely be much happier if you’d just move to Commie China under the CCP.

      2. BTW:

        Another day & another day of much more Conformation of Complete USA Election Fraud in recent Elections like Trump’s 2020 reelection & 2022 vote.

        But good news is rumor has it RFK is leading Commie/Fascist J Biden by a huge lead in polls & RFK & DJT are in talks to do a number of Tall Hall Events around the US discussing US Election Fraud & other issues.

        And it isn’t like the Deep State is already crapping their pants, they know they’re Losers by anything they do at this point as American know they’re Evil!


        HUGE: Postal Service Releases Final Report – Contract Driver Jesse Morgan Vindicated – Report CONFIRMS He Hauled Trailer of Ballots from NY to PA in Late October 2020
        by Jim Hoft Jun. 5, 2023 8:00 am132 Comments


      3. So if I impersonate specific black people like Jimmy Walker then everything is ok since Imitation is the sincerest form of flattery, right? You are such a joke.

  6. A prehistoric faith. A prehistoric [ethical] religion. A modern revival of a liberal ideology. Trans/social with a pedophile orientation, which enjoyed progress with trans/homosexual males grooming boys in schools, scouts, churches, etc. under cover of political congruence (“=”), social justice, and DIE (Diversity is Inequity and Exclusion). And male grooming of girls through neighbors, friends with “benefits”, and across the social spectrum, with the [carbon] “burden” of evidence aborted, perchance cannibalized, then sequestered in sanctuary States in darkness.

  7. Seems like the easy way to fix this is for the legislature to simply state that “No child under the age of majority shall attend nor be subjected to transexual/transvestite performances or descriptive detail unless specifically permitted by their parent(s).”

    That’s not vague in any way, sets an age limit, and gives parents a say so.

    For that matter, I’d like to see the state legislatures write a simple law stating: “The primary purpose of K-12 education is to ensure that young citizens can participate in our state’s democracy and our nation’s Constitutional Republic. To the end, public school instruction will emphasize skills associated with Reading, Writing, Mathematics, History, and Civics, using age appropriate instructional material. Any other instruction shall be on a limited, voluntary basis with parental approval.”

    Now let the trolls react…..

    1. That would be fair. Unfortunately, the State-established religion (i.e. behavioral protocol) is based on the principle of political congruence (“=”). All’s fair in lust and abortion.

    2. Would your proposed law allow under majorities to watch MRS. DOUBTFIRE? Or VICTOR/VICTORIA? Or ED WOOD? Or SOME LIKE IT HOT? Or…

      Your law doesn’t specify an age of majority either. 18 as 26A specifies? The drinking age of the state? The age at which anyone can get married? If married, does that free the married one from parental control of this law.

      Call this a troll if you like, but if enacted, your law will have to face such challenges, and I don’t think it is up to these challenges.

      1. I don’t consider your response to make you a troll. You bring up good, rational points that would have to be considered.

  8. “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.”
    Great! The Court is now an enabler of mental disease and like that Biden SCOTUS bumpkin can’t understand simple concepts like “woman” or what is “harmful to minors.” Oh and my dear judge “viewpoint of gender identity” is an oxymoron. Gender identity is fixed at birth and pretending you’re something you’re not is by definition “harmful to minors.” Cruising the neighborhood smarmily asking “Want some candy, little girl?” doesn’t make you a candy saleman regardless of your viewpoint. Civilizations die from perversions to be sure but more often they succumb from the stupidity of those charged with protecting us from those perversions.

    1. How is a drag show harmful to children? Please provide links to peer reviewed studies.

      1. It is a form of Marxism to tear down social norms. Attacking children and confusing them during early stages of development is harmful. How about we have bulimics and anorexics show young girls all about their eating habits and how wonderful it is to be thin? Better not call it a disorder though.

      2. What the hell is wrong with you? Groomer alert!

        Long before science became a thing, parents inherently knew that their children’s minds were fertile grounds and that they were responsible to develop in them right reason. If you still need science to tell you how to think, then your parents failed you.

    1. I agree 100%, keep them out of religious establishments. There is a clear association with bigotry and attending a religious establishment.

  9. The judge didn’t want his local “Strip Club” and “Pole Dancers” shut down. I like this guy!

  10. A lot of stupid legislation is written at all levels in America and often benefits from revision after the fact. IMHO, If you do not want your children exposed to such performances, keep them away from them until they are old enough to make their own decisions. If you did your job instilling your favored values, you should have less concern with the monthly observances for whatever group we celebrate (except white males, of course). Debate without condemning those whose ideas you do not share.

  11. I agree with the decision. The legislation seemed to be a weak attempt to do something to protect minors.

    This shouldn’t be that difficult. But that assumes we live in a society where the “common good” of the majority is not subordinated to the will of outside forces hostile to that common good.

    The longer those hostile forces are permitted to freely infect the common good with their perversions, then the deeper the degradation of our culture will decline.

    Imagine where the bottom will be because that’s where this is headed.

    1. OLLY,

      The bottom will be either complete collapse of society, some form of theocracy, or a dictatorship, because the deeper the societal degradation, the more austere the “fix”.

  12. Is it even possible to write a law anymore that works? The question is simple “Should we prevent underage minors at “x” age be prevented from attending certain entertainment venues without parents written permission”.
    We are stealing the wondrous naïveté of childhood. Now political forces cannot wait to drag them through the real world’s sewer.

    1. Chuckiechan,

      I couldn’t agree with you more! I’m 60 now, and when I was a kid, all those eons ago, we didn’t have to deal with anywhere near the crap we do today.

      True, our world is far more complicated than it was, way back then, but kids should be allowed to be kids, schools and parents should prepare them for adulthood, but they shouldn’t be thrown into the lion’s den, almost from the moment of birth.

      Screw up kids, you end up with screwed up adults, and a screwed up society – it’s no more complicated than that.

  13. Jonathan: Finally, something we can agree upon. The Tennessee law severely restricting drag shows is clearly unconstitutional. But you express some misunderstanding about drag shows. They are not “put on for young children”–at least those taking placing in private clubs. When there are public gay-pride events in public places there is often a contingent of drag performers but they are not there to “groom young children”. I know because many years ago I took my 3 young granddaughters to such an event. They were amused by the elaborate costumes and dancing and singing skills of the performers. That didn’t change their sexually orientation. All three now have boyfriends. But GOP Tennessee lawmakers crafted their unconstitutionally vague bill with the false assumption that drag shows are “harmful to minors”. It’s part of the anti-LGBTQ+ agenda in Tennessee, Florida and other states dominated by the GOP.

    The more fundamental Q is why the GOP thought it could pass this law that clearly infringes on core free expression rights? It should be recalled that it was just two months ago that the white dominated Tennessee House expelled 2 Black members because they led the protests over gun control. You thought that was OK despite the clear racial animus that motivated the expulsion. Violating the free expression rights of Black legislators didn’t seem to concern you.

    Racism has been embedded in Tennessee politics since the days of the Confederacy. The KKK was born in Tennessee. When protestors called for the removal of a bust of the Klan’s first Grand Wizard the white GOP refused. Moderate conservatism is alien to the new crop of GOP politicians in the state. It is now dominated by firebrand MAGA adherents who are, to use the words of one GOP politician, against “creeping socialism and leftist political tyranny”. White GOP politicians in the state openly call Black people “idiots” and “baboons”.

    In this context it is strange you would limit your discussion to the anti-drag bill–and ignore other aspects of the Tennessee GOPs other attacks on free speech. Tennessee has joined Florida in passing anti-LGBTQ+ laws. Book banning is all the rage in Tennessee. One school district board even voted to ban “Maus”, the Pulitzer Prize-winning graphic novel about the Holocaust. Books on race have frequently been targeted for removal from school libraries. All of these actions involve attacks on “free speech”. Whether in Florida or Tennessee you have studiously avoided all the wider attacks on free expression. Why is that?

    1. . But you express some misunderstanding about drag shows. They are not “put on for young children”

      I keep hearing the lie, but guy in drag continue to work overtime in their desires to get in front of Children. It is clear, men dressing up as women, and performing in front of children, works toward sating their sexual desires. The men are getting off, because of the children. It is impossible to see any other justification.

      Stop lying and claiming books are banned.

      Schools are currating library content, along with books used in classrooms. The choices are nothing but assure age appropriate content is put infront of CHILDREN. The decisions are made by an elected Board of Education. Disgree? An election will be taking place in a matter of months.
      That is what democracy looks like.

      1. iowan2 says … “It is clear, men dressing up as women, and performing in front of children, works toward sating their sexual desires. The men are getting off, because of the children. It is impossible to see any other justification.”

        Don’t assume and speak for other people. But perhaps you are not speaking about other people, Perhaps you are speaking for yourself? So you should stay away from children no matter what you are wearing.

        Never make assumptions on motivation without some extensive research.

      2. Iowan2,

        I attended a drag show at a gay bar in Sioux Falls, SD, I believe it was in 2006. Believe it or not, the star drag queen was a 14 year-old boy. The club did serve alcohol, and the performance was done in front of a packed house of gay men. I have no idea whether or not it was an overt attempt to groom kids, or to satiate the desires of any pedophiles in the crowd, but if that happened, all those years ago, how much worse have things become since then?

        As to book banning, I don’t think any book should be banned, but any library, particularly public ones, should do their best to ensure that any book, either checked out, or read in-house, is age-appropriate.

        LGBTQI+ should be kept out of schools entirely. The purpose of schools is to prepare children for the demands of adulthood and the work world. We need to educate, not indoctrinate.

        Finally, companies, such as Target, shouldn’t be selling LGBTQI+-themed merchandise for infants, toddlers, or pre-teen/teens, but particularly not for infants, toddlers, or pre-teens.

        Life is already confusing enough for a child, no need to add to that confusion.

  14. Justice Potter Stewart couldn’t define obscenity either, but he said he would know it when he saw it.

  15. From the opinion:

    “The Tennessee General Assembly enacted a statute criminalizing the performance of
    ‘adult cabaret entertainment’ . . .”

    So criminalize and censor the movies “The Birdcage” and “Mrs. Doubtfire”?!

    In their zeal to legislate morality, conservatives are their own worst enemies.

  16. Obscenity laws have always been tricky in the United States. At least the Tennessee Legislature tried to address the issue of Drag Queen Shows, particularly those targeting elementary school children which is blatant grooming in my personal opinion. I was an alcohol enforcement agent in my home state that required topless dancers in establishments that served alcohol to wear pasties and anything that could pass for a thong, while dancers in establishment that did not serve alcohol could dance totally nude. Never made a lot of sense to me. Interesting that the Plaintiff in the Tennessee case, The Friends of George, enjoys tax exempt status as 501(C)(3). Thank you, Jonathan, for an excellent article.

  17. How hard can it be to craft a law that protects children? It’s not as if such statutes don’t already exist. And it’s not as if they do not garner overwhelming public support. People who seek to lewdly push their adult predilections and fetishes on to minors (that is what they are doing) are a pestilence.

    1. “How hard can it be to craft a law that protects children?”

      Except that is *not* what AEA did. It used “harm” to children as a rationalization to legislate morality for *adults*.

      A law to protect children is very easy, and delimited: No person under 18 . . .

    2. Generations of kids have grown up with Bugs Bunny sometimes in drag. Family comedy shows like Milton Berle sometimes had him in drag. Classic movies like Some Like It Hot have actors drag. You’re the one who sees it as a lewd fetish.

      1. Low value response. You know very well what we are talking about here. It’s not “Bugs Bunny” in a woman’s dress. It’s talentless men, dressing in the most grotesque misogynistic stereotype of women, as they stick their junk in the faces of kids. And I’m not even exaggerating. It’s sinister and it’s de facto ‘grooming’. Why are you being so obtuse?

          1. Whatever turns you on anonymous dude. But again, another low level response. NO ONE give a flying fig about what consenting adults get up to so long as it doesn’t scare the horses. But please, carry on playing dumb. You have that nailed. The ability to argue rationally at a level higher than a 10 year old? Not so much.

  18. The Professor failed to identify what caused the changes between societal values in 1987 to what we have inflicted upon us today in 2023.

    What caused the deterioration of societal values in this country for the few that desire to make it apply to all of us?

    If we can proscribe sugared soft drinks for school children….then we can do the same for Draq Queen Shows.

    Amend the Law and move on.

    Schools need to get back to educating children in the subjects they need to survive in society…..math, science, language, writing, history, computers, how to handle a check book/credit card/sudent loan debt, First Aid, CPR, Firearms Safety, Shop, Home Ec, Driving, and other skills and abilities that prepare them for Life.

    Most importantly they must be taught HOW to think….not WHAT to think….and be encouraged to challenge the teachings of anything outside that core curriculum.

    Every School Administrator, Teacher, and Parent should be zealously guarding our Children from corrupt agendas striving to brain wash the Children.

    Anyone found violating that should be removed from having any influence upon a child as part of the educational system.

  19. I can’t really disagree with the judgement here. I suspect there will be a cleaner and far more specific law in the future. Someone in the legislature there needs to do a little research about what will pass muster in light of previous decisions and also be far more specific of age groups of children, since there are even arguments about hat is the age of “children”. Hard to argue a person is a child when they can vote, legally bear arms and must file for selective service as well as serve in the military. Better luck next time.

    1. We agree on the principle that the constitution must be respected. The striking of this law will hopefully spur legislators to craft better laws.
      I don’t follow your point on people being able to serve in the military. At 18, they are adults

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