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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