The Courts and the Culture War

Posted: June 14, 2023 /

Court Invalidates Tennessee Statute Banning Drag Shows For Children

It is a busy time in the culture war.  On June 6 alone, the Second Circuit heard en banc oral argument in Soule v. Connecticut Ass’n of Schools, which revisits a challenge by female high school track athletes to their athletic conference’s policy of allowing transgender girls (biological boys) to join girls teams; and a Florida district court, in Doe v. Ladapo, No. 23-civ-114 (RH)(MAF), 2023 WL 3833848 (N.D. Fla. June 6, 2023), preliminarily enjoined a state statute banning use of puberty blockers and cross-sex hormones to treat gender dysphoria.  We hope to address those cases in the near future but in the meantime, we consider another high-profile recent case: Friends of Georges, Inc. v. Mulroy, No. 23-cv-02163, 2023 WL 3790583 (W. Dist. Tenn. June 2, 2023), in which a Tennessee district court invalidated a state statute restricting adult entertainment performances to adult audiences.

The Tennessee statute at issue, the Adult Entertainment Act, Tenn. Code Ann. §§7-51-1401 and § 39-17-901 (the “AEA”) makes it a crime for a person to perform “adult cabaret entertainment” on public property or “’in a location where the adult cabaret entertainment could be viewed by a person who is not an adult.’” 2023 WL 3790583, at *2 (quoting statute).  “‘Adult cabaret entertainment’” is defined as “‘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.’”  Id. (quoting statute).  The “harmful to minors” standard is defined in an existing obscenity statute, Tenn. Code Ann. § 39-17-901(6), that tracks the Supreme Court’s 1973 Miller test.  See 2023 WL 3790583, at *5.

The legislature’s purpose in enacting the AEA was “to clarify current law by requiring that adult-oriented performances may only be held in age-restricted venues and may never be held on public property.”  Id. at *4 (cleaned up).  The legislature had received “hundreds of calls and emails from outraged parents” about performances that appeared to violate the existing obscenity statute, and discovered a “loophole” that would allow adult entertainment to take place in public settings.  Id. at *5.  The legislature received testimony that children are harmed by “early sexualization” and exposure to explicit adult entertainment, which was said to encourage children to accept and celebrate adult sexual behavior, empower child predators, and increase the demand to exploit and sexually abuse children.  In opposition, the legislature heard testimony from a business owner catering to the LGBTQ+ community, who stated that his drag performers had never been cited for alcohol violations and do not show “‘any more skin than a Titans cheerleader on a Sunday afternoon.’”  Id. *5. 

Plaintiff is a Tennessee non-profit organization that produces “drag-centric performances, comedy sketches, and plays,” and aims to “provide a space outside of bars and clubs where people can enjoy” drag shows.  Id. at *3, *12.  The organization aims to bring its performances to child audiences: “Plaintiff seeks to provide a space for some non-adults to enjoy drag outside of stigmatized, age-restricted venues.”  Id. at *4.  Videos of plaintiff’s performances introduced into evidence included one involving four female impersonators in which “the character describes sexual acts including intercourse and masturbation,” and another, also involving female impersonators, in which “the characters portrayed sexual acts.”  Id. at *4, *12-*13.  Plaintiff provided testimonial evidence describing other performances, including a skit involving “a portrayal of sexual acts between two performers, one of whom was “wearing tight, tight black pants and he is . . . wearing a penis that is over exaggerated so the audience can see it’s there”; one involving ““blow jobs and possibly having sex as well as pooping in somebody’s purse;” and a third involving “’two people presenting gift packages where their penises would be . . . penis is in a box, it’s got tissue around it. It’s really hard to see if it is [erect] or not.’”  Id. at *13.

After plaintiff voluntarily dismissed the Governor and Tennessee Attorney General as defendants, the sole defendant was the Shelby County District Attorney General (the “DA”), whom the parties stipulated would enforce the AEA within his jurisdiction.  See id. at *3. 

The court held that the AEA is a “facial content-based restriction,” because it “draws distinctions based on the message a speaker conveys:  adult-oriented performances that are harmful to minors are sanctioned with a criminal penalty while others are not.”  Id. at *19.  The court held the statute is also a viewpoint-based regulation by virtue of its inclusion of “male or female impersonators” in the list of covered performers.  Id. at *21.  Specifically, 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.”  Id. *21.  The court rejected the DA’s argument that the statute did not single out male and female impersonators but simply included them in a list of covered performers.  Id. at *21.

As an “alternative and independent basis” for concluding that the AEA is a content-based regulation in the event “another court disagree[s] and find[s] that the AEA is a content-neutral regulation,” the court also ruled that an “impermissible purpose or justification underpins” the AEA.  Id. *22.  The legislature’s impermissible purpose is reflected in the change in “regulatory scheme” from regulating establishments to regulating performers; the statute’s viewpoint discrimination against drag performers; and the lack of a scienter requirement or affirmative defenses.

The court determined that strict scrutiny applies to the AEA as a content-based speech restriction.  Thus, to uphold the statute the DA had “to prove that the AEA is narrowly tailored to serve compelling state interests.”  Id. at *27 (cleaned up).  The court held (and it was undisputed) that “there is no question that Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors, which extended to shielding them from indecent messages that are not obscene by adult standards.”  Id. at *27 (cleaned up).  The problem was that the statute was not narrowly tailored to serve this compelling interest, because it “criminally sanctions performers virtually anywhere,”—covering performances that “could be viewed by” a child—including at “private events at people’s homes or arguably even age-restricted venues.”  Id. *28.  The court rejected as “unmoored from the text” the DA’s reading of the statute’s geographic scope to prohibit performances only where they “could permissibly be viewed” by a minor; under this reading, for example, performances could take place anywhere that people are carded at the door.  Id. at *26.  The court explained that the lack of narrow tailoring is also reflected in the absence of a scienter requirement or affirmative defense of parental consent.  Id. at *28.

Separate from the strict scrutiny analysis, the court considered plaintiff’s arguments of vagueness and overbreadth.  The court held the “harmful to minors” standard unconstitutionally vague because performers would be forced to guess what conduct would be prohibited for what ages.  See id. at *29-30.  And it held the statute substantially overbroad because the threat of prosecution under “a vague ‘harmful to minors’ standard . . . could chill a drag show group into paralysis.”  Id. at *31.

The court declared the AEA unconstitutional and permanently enjoined the DA from enforcing the statute within his jurisdiction of Shelby County (which covers Memphis).  See id. at *32-33.

It is hard to argue with the court’s conclusion that the lack of narrow tailoring in the “could-be-viewed-by”-a-minor standard doomed the AEA despite the state’s undisputed compelling interest in protecting the well-being of children.  But there is unlikely to be a quick fix, even with a more age-restricted geographic provision, if it is drag shows for children the legislature wishes to regulate, for the court singled out these performances for special protection.  The court was bothered by what it considered the statute’s viewpoint discrimination against impersonators of the opposite sex, reasoning that the statute “targets the viewpoint of gender identity by regulating “those who wish to impersonate a gender that is different from the one in which they are born.”  Id. at *21.  But the court did not explain why impersonators of the opposite sex present a viewpoint where, say, topless dancers do not.  After all, the Supreme Court has held that live nude dancing “is expressive conduct within the outer perimeters of the First Amendment.”  Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991).  In examining the AEA’s legislative history, the court could not “escape that ‘drag’ was the one common thread in all three specific examples of conduct that was considered ‘harmful to minors.’”  Id. at *24.  The court ruled that the secondary effects doctrine (allowing application of intermediate scrutiny to a content-based regulation where the statute targets “the undesirable secondary effects of the regulated speech,” id. at *25) did not apply because the legislature’s “predominate concerns” were not an increase in sexual exploitation but “the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born.”  Id. at *26.  The statute’s overbreadth, too, was a problem for drag performers but not apparently other regulated performers.  See id. at *31.

What, according to the court, was the special problem with the legislature seeking to protect children from drag shows?  Is it that impersonators of the opposite sex are not indecent for children as compared to, say, topless dancers?  The court seemed to think so:  by including male and female impersonators as sanctionable performers, the statute targeted “the viewpoint of gender identity,” which the court believed was “unrelated to protecting children.”  Id. *21.  Drag performers, then, are but an example of persons adopting a gender identity distinct from their biological sex—a group now entitled to categorical civil rights protections (see, e.g., here here, and here).  Thus, to hold drag shows subject to regulation in the manner of other adult entertainment would call into question the normalizing of gender identity theory that has proceeded in the culture at large.  The court acknowledged as much if not quite as directly, explaining in its viewpoint discrimination analysis that lumping “male and female impersonators” together with other adult entertainers in a 2023 statute is untenable even if doing so caused “little or no concern” in a 1987 Tennessee statute regulating adult businesses.  Id. at *21. With Friends of Georges the plaintiff has notched a win for its stated mission of “taking drag into the mainstream.”  Id. at *11