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Trump Appointee: Tennessee Law Banning Drag Performances for Minors “Unconstitutional”

Trump Appointee: Tennessee Law Banning Drag Performances for Minors “Unconstitutional”

The judge agreed Tennessee has a compelling interest “in protecting the psychological and physical wellbeing of children” but found the law was unconstitutionally overbroad and vague.

A federal judge appointed by Donald Trump has struck down a Tennessee law banning drag performances in the presence of a minor. The judge found the law, known as the Adult Entertainment Act, unconstitutional as a “restriction on the freedom of speech” and permanently prohibited its enforcement.

Tennessee Governor Bill Lee (R) signed the Adult Entertainment bill into law on March 2, 2023. The bill modified Tenn. Code § 7-51-1401 to define “adult cabaret performance”:

(A) Means adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; and
(B) Includes a single performance or multiple performances by an entertainer. [emphasis added]

The revised Tenn. Code § 7-51-1401 relies on Tenn. Code § 39-17-901(6) for its definition of “harmful to minors”:

(6) “Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:

(A) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;
(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and
(C) Taken as whole lacks serious literary, artistic, political or scientific values for minors.

The bill also modified Tenn. Code § 7-51-1407 to criminalize adult cabaret performances on public property or in the presence of a minor and to classify a first offense as a misdemeanor and a subsequent offense as a felony.

Friends of George’s, a drag theater company, brought the action against Shelby County District Attorney Steven Mulroy. The group issued a press release shortly after its victory, which it framed as “a triumph over hate.”

“This law was always a solution in search of a problem,” Mulroy’s office responded to Legal Insurrection‘s request for comment. “By chilling free expression and making the LGBTQ community feel targeted, it did more harm than good. I look forward to not enforcing it.”

During the trial, a Friends of George’s board member who testified on behalf of the organization acknowledged that “performances can be sexual, but the performers try not to get ‘too risqué.'” Instead, the performers “try to stick around the PG-13 area.”

The judge, viewing exhibits submitted by Friends of George’s, found some of the group’s performances could fall within the scope of the law because one performance “describe[d] sexual acts including intercourse and masturbation” and another included “characters portray[ing] sexual acts.

The judge applied the highest level of constitutional scrutiny, strict scrutiny, to the law because the law restricted speech based on content and viewpoint. He also found strict scrutiny appropriate because the law “was passed for the impermissible purpose of chilling constitutionally-protected speech” because the legislative record indicated a desire to target drag performances.

The judge agreed Tennessee had a compelling interest, the first part of the strict scrutiny test, “in protecting the psychological and physical wellbeing of children” but found the law failed to meet the second part of the test in that it was not narrowly tailored to nor the least restrictive means of achieving that interest.

The judge found the law “both unconstitutionally vague and substantially overbroad.” The law was unconstitutionally vague, the judge found, because its “‘harmful to minors’ standard applies to minors of all ages, so it fails to provide fair notice of what is prohibited, and it encourages discriminatory enforcement.” The judge found the law “substantially overbroad because it applies to public property or ‘anywhere’ a minor could be present.”

Brice Timmons, an attorney at the firm representing Friends of George’s, expects the state to appeal. In a response to Legal Insurrection, Timmons expressed his “wish that the legislature would simply fix the problems with the existing laws to protect kids from sexual abuse” instead of defending the Adult Entertainment Act.

“In Tennessee, as we sit here today, if someone lures a child of 13 into their home and exposes themselves, that doesn’t violate the indecent exposure law,” Timmons told Legal Insurrection. “Two years ago, a legislator introduced a bill to raise that age to 15, just to 15, and the bill didn’t even get a floor vote. If the legislature wanted to protect children, it should’ve passed that law, and it still could.”

Legal Insurrection has covered constitutional challenges to laws banning drag performances in the presence of minors. A pending legal challenge in Florida makes legal claims similar to those that prevailed in Tennessee, namely that the Florida law is impermissibly vague because it leaves determinations of maturity to the establishment.

According to a report from the LGBT organization GLAAD, 13 state legislatures have moved “to restrict or ban drag,” including Arizona, Idaho, Kansas, Kentucky, Missouri, Montana, Minnesota, Nebraska, Texas, and West Virginia.


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Sounds like TN has DJT to thank.

“A federal judge appointed by Donald Trump …”

Here we go again.

Since plenty of cross dressers are straight men, you can be against Drag Shows without being homophobic.

That’s fine. In the aggregate, I want laws that are completely in alignment with the Constitution.

Read what the judge wrote, make adjustments and pass another law that satisfies the judge’s concerns.

Not really a big deal, ya know.

    chrisboltssr in reply to Peter Moss. | June 19, 2023 at 8:03 pm

    Or, go back to the actual reading of the Constitution, which does NOT include freedom of expression.

      You can’t have free speech or any of the other freedoms in the First Amendment without free expression.

        chrisboltssr in reply to oldschooltwentysix. | June 19, 2023 at 8:45 pm

        Yes, you can and we had it that way for the majority of this country’s existence.

          Example please of someone that exercised a freedom in the First Amendment that was not engaged in freedom of expression. The “exercise” is expression, the freedom of expression in practice. That includes freedom of speech. One need not talk to express.

          chrisboltssr in reply to chrisboltssr. | June 19, 2023 at 9:23 pm

          I don’t need tocprovidecyiu with an example. As I told you, this country operated without reading a fake right to expression into the Constitution since its founding. Don’t make stuff up. Speaking and expressing are two different things. We can and have regulated all kinds of expression and people like you helped bust that door open to where we are today.

          Amazing that we are defending drsg shows for minors yet it is still against the law in most states to not take kids to strip clubs. But, expression and all right?

          In other words, you can’t provide even one example to contradict the notion, in spite of your bald assertions.

          You’ve created a controversy where none existed. No one ever said that the words were in the Constitution, as you implied.

          The fact remains that the First Amendment covers freedom of expression, which must exist to exercise ANY of the rights enumerated therein.

      I find this confusing, chris. How is freedom of speech different in your mind from freedom of expression? Isn’t speech an expression of one’s thought, ideas, ideals, principles, and morals? I’m not sure I understand your point here. Where’s Milhouse when you need him? 😛

        diver64 in reply to Fuzzy Slippers. | June 20, 2023 at 3:43 am

        The Constitution and writings of the Founders clearly did not include any mention of “expression”. They are directed at speech “town square” and the press to preclude censorship by an over powering government and aimed squarely at political speech.

          Freedom of expression is the “freedom of speech, press, assembly, or religion as guaranteed by the First Amendment of the U.S. Constitution; the prohibition of governmental interference with those freedoms.”

          Black’s Law Dictionary (11th ed. 2019)

          CommoChief in reply to diver64. | June 20, 2023 at 4:40 pm

          So would the written word still be included under your interpretation and thus protect this kid’s 1st amendment rights or no?

          Did you really mean to pare down the protection offered by the 1st amendment to solely political opinion within the physical town square and exclude those protections elsewhere?

    Agreed. Laws affecting fundamental rights that are vague and ambigous, and not narrowly tailored, are not helpful, and subject to abuse.

    Joe-dallas in reply to Peter Moss. | June 19, 2023 at 8:33 pm

    Point A – It takes a very sick person to think that drag shows with children in attendance is okay

    Point B – constitutionally, there is no problem banning children from drag shows or other forms of “entertainment” that is inappropriate for that age.

    Point C – if the law is vague, then it has constitutional issues. Simply rewrite the statute without the vagueness.

    Point D – quit complaining about the judge , He is applying the law correctly based on the constitution and based on SC holdings – See Scalia’s opinions on vagueness. I recall that Thomas has some opinions discussing vagueness

      BoboPhat in reply to Joe-dallas. | June 19, 2023 at 9:31 pm

      Point A is problematic though. Consider “Punch and Judy” wherein a performer uses hand-puppets representing both sexes (Punch is male, Judy is female.) The show needn’t necessarily include any content about sexuality, but it might still be considered a “drag show.”

      Then there is Peter Pan, a young male character usually portrayed (on Broadway for example) by a female because a young male actor would age and no longer look the part during the course of the show’s multiple-years-long run on Broadway.

      Then there is Pinocchio, the 1940 Disney movie, which includes a scene with female marionettes dancing the can-can, including lifting their skirts and showing their bloomers. Does that constitute “adult entertainment”? Link to a site with a photo of the can-can dance from Pinocchio:

      If you agree that it isn’t clear on such issues, then the law is poorly written, and it is a mystery as to why it was so poorly written.

        Dimsdale in reply to BoboPhat. | June 19, 2023 at 11:36 pm

        Of course, Punch an Judy, Peter Pan or Pinocchio’s can–can dancers did not cavort on stage displaying their nonexistent genitalia/crotch areas in front of children.

          BoboPhat in reply to Dimsdale. | June 19, 2023 at 11:49 pm

          I agree, but the law does not define what constitutes “adult cabaret.” It is difficult to imagine that that would -not- include the can-can dance in Pinocchio, because the term is left vague.

          “(1) It is an offense for a person to perform adult cabaret entertainment:
          (A) On public property; or
          (B) In a location where the adult cabaret entertainment could be viewed by a person who is not an adult.”

          Dimsdale in reply to Dimsdale. | June 20, 2023 at 6:54 am

          I believe that is what the TN legislature is attempting to do. I hope they can get the guidance to sidestep the objections of this judge.

          Otherwise, you can start selling the kids porn….

        Joe-dallas in reply to BoboPhat. | June 20, 2023 at 9:40 am

        I think we are saying the same thing.

        The language in the statute was vague, which would ban peter pan, pinnocio , etc thus unconstitutional,

        We likewise probably agree that drag shows as commonly known should be banned when children are present

        GWB in reply to BoboPhat. | June 20, 2023 at 9:55 am

        Consider “Punch and Judy” … it might still be considered a “drag show.”
        Ummm, no. It is not a drag show, by definition. They are puppets.

          BoboPhat in reply to GWB. | June 21, 2023 at 9:39 am

          Wouldn’t that position allow LGBTwhatever puppet shows depicting sex to an audience of minors?

Close The Fed | June 19, 2023 at 7:57 pm

Law-itis. Judges have a too-high opinion of themselves.

They have destroyed the country and evidently are blissfully unaware.

chrisboltssr | June 19, 2023 at 8:02 pm

We can say Donald Trump appointed all we want, what is really being said is that these judges are conservatives. This goes to show, again, that Leftism has infected and infested all of our institutions, including conservative ones.

    Dimsdale in reply to chrisboltssr. | June 19, 2023 at 11:37 pm

    Or, as exemplified by the illegal protests in front of certain SCOTUS justice’s homes, prefer not to be harassed or threatened.

    Well, no. The law does seem to be overly broad as written. Democrats would rewrite it and resubmit until the end of time; Republicans might just shrug that ‘aw shucks, we tried” shrug and fall back on their couch, defeated. I am so sick of that from the GOP.

GOP legislators had better quickly figure out how to draft these statutes banning “drag” shows in the presence of minors, so that they pass judicial/constitutional scrutiny.

The ruling isn’t crazy. The issue of vagueness is easily fixed when it is rewritten as Drag show +simulated sex acts + minors present = violation. Drag shows are not banned, simulated sex acts at drag shows are not banned only when the those two are combined with the presence minor children should there be a violation.

Maybe use specific places for the prohibition as well; public property or even add any area of public accommodation which accepts taxpayer support. Then specify ban use of taxpayer funds for any aspect including transportation. That works to ban it from a location playing host for a school sponsored event as well as in schools.

IMO though they should probably narrow down the age of application for a complete ban to 12 and under or similar. Then allow it when the 13+ child is accompanied by their Parents (plural/both). If Mom and Dad are both willing to take off work to bring their 13 year old to the drag show during the school day then we gotta let Parents make decisions about their kids.

    BoboPhat in reply to CommoChief. | June 20, 2023 at 12:00 am

    I’d leave-out the “drag show” term and go with “simulated sex acts, and/or sexually explicit language” but that may be a problem with various PG-13 movies, and even songs. If movies are excluded, then the drag show crowd would have an easy out — video record the show in advance and show the video instead of a live performance. The language is complicated, much like the famous quote about pornography: “I can’t define it but I know it when I see it.”

Hmm. Interestingly, in a different posting about the kid from Massachusetts with the “there are only two genders” t-shirt, the judge ruled “• Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed.”

So a school can decide “community standards,” but a state legislature cannot?

Something is broken here.

    geronl in reply to Dimsdale. | June 20, 2023 at 12:42 am

    The state legislature literally controls and can do whatever they want with the public schools.

      Interesting. So why do we even have school boards or superintendents? (I am not being sarcastic here, I really don’t see the need for them if the state decides local, county, city, town etc. public school decisions, Why are we paying for this crap if they have no power?)

        Dathurtz in reply to Fuzzy Slippers. | June 20, 2023 at 7:19 am

        In my state, the state sets educational standards that it enforces by standardized testing and “random” observations which have some impact I don’t understand. It also sets a variety of rules, particularly with regards to specific funding programs.

        For instance, Louisiana specifically discourages textbook use by classifying them as a non-tier 1 curriculum. At the beginning of last school year, there was exactly one approved tier 1 curriculum. So, control without specifically claiming control.

        My school board sets goals and approves/disapproves the policies and rules created to meet those goals. The various tiers of administration implement those policies, enforce rules, and provide whatever support teachers/students need and can be provided.

        That is the general, idealized scheme everywhere I have been.

groomers gonna groom

They weren’t stopped from expressing themselves through dancing in a provocative manner as they could still do that after the bill was passed. What they were trying referred from doing was doing that to children.

As others have said, update the language and pass it again.

I’m ok with “freedom of expression” including pornography and explicit live sexual performances.

BUT, the State clearly has an interest in prohibiting minors from viewing any of it, which includes barring these live, very explicitly sexual, performances in any venue that allows minors entry.

Doesn’t seem like that would be a challenge for any competent Judge to figure out, especially since it aligns with pretty much every previous ruling on the subject.

Hopefully this error will be corrected on appeal.

    WindyHill in reply to Aarradin. | June 21, 2023 at 6:11 pm

    It’s not the judge’s error or the judge’s competence that are at issue here.

    The law, as written, is overly vague and must be fixed. That is not the judge’s fault.

RepublicanRJL | June 20, 2023 at 6:41 am

We need laws to codify common sense? The sad part? These ‘minors’ aren’t attending these shows on their own. Parents are bringing them.

Should parents then be charge with prurient interests harmful to minors?

Opposite ends of the same stick.

So it’s overly broad. TN has to go back and make it specific. C’mon, man! Get it done!

E Howard Hunt | June 20, 2023 at 9:18 am

Now that they have endorsed flashing in front of minors, it will probably be regulated with licensure requirements and fees. We wouldn’t want to risk the public safety with unlicensed flashers.

RepublicanRJL has it right. When you have to pass laws to prevent the exposure of children to sexually perverted performances, something is deeply wrong with the culture.

I can understand, but not approve of, adults acting out their rebellion against their creator. It’s more difficult to understand parents bringing their children to watch.

This is one of many signs that we live in a child-sacrifice culture – adults pursuing their own desires at the expense of children.

Capitalist-Dad | June 20, 2023 at 9:49 am

“Freedom of expression” is an invention of (I believe) the Warren court in a case that overturned a local law banning strip joints. It’s another exercise in leftist judges playing “fun with euphemisms/creative definitions” in the left’s continuing efforts to sacrifice the normal to the abnormal. It’s the same sort of sophistry that expands “sex discrimination” to include gay or trans individuals—even thought the law in question was written in an era where no legislator writing it could have any notion that the language they wrote might be twisted to include such concepts. After all, why take the trouble to have the legislature vote to amend the Constitution or a statute when you can just create what you want by decree? That’s not representative government, but it gets leftists anything they want without the risk of involving the “rubes” in fly over country.

I don’t have a problem with drag shows directed to adults–if people want to see that, and they are consenting adults, then have at it; I do have a problem with such shows targeting minors or allowing them to view such shows. Many states have laws prohibiting minors from going into bars–this should be the same.

And I don’t understand why Trump is even speaking about this–it doesn’t appear to be something that would result in a lot of votes for him, unless he’s going to pull a Biden and go for the minor number of trans votes