A federal judge appointed by Donald Trump said a first-in-the-nation Tennessee law designed to place strict limits on drag shows is unconstitutional.
In a 70-page ruling handed down late on Friday, the US district judge, Thomas Parker, called the law “unconstitutionally vague and substantially over-broad”, and said it would encourage “discriminatory enforcement”.
“There is no question that obscenity is not protected by the first amendment,” Parker wrote.
“But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law. Simply put, no majority of the [US] supreme court has held that sexually explicit – but not obscene – speech receives less protection than political, artistic or scientific speech.”
A Memphis-based group, Friends of George’s, filed the complaint in March, saying the law would negatively impact it because it produces “drag-centric performances, comedy sketches and plays” with no age restrictions.
Initially, the complaint listed the Republican governor, Bill Lee, the attorney general Jonathan Skrmetti and the Shelby county district attorney general Steven Mulroy as defendants. The plaintiffs later agreed to dismiss the governor and top legal chief, though Skrmetti continued to represent Mulroy.
A spokesperson for Skrmetti and Mulroy did not respond to requests for comment.
The Republican-dominated Tennessee legislature advanced the anti-drag law earlier this year, with several members pointing to drag performances in their hometowns as reasons it was necessary to restrict such performances from taking place in public or where children could view them.
Yet the word “drag” does not appear in the statute. Instead lawmakers changed the definition of adult cabaret to mean “adult-oriented performances that are harmful to minors”. Furthermore, “male or female impersonators” were classified as a form of adult cabaret, akin to strippers and topless, go-go and exotic dancers.
The law would have banned adult cabaret performances from public property or anywhere minors might be present. Performers who broke the law risked being charged with a misdemeanor or a felony for a repeat offense.
Lee signed the statute and it was set to take effect on 1 April. But the law has never been enforced because Parker sided with the group that filed the lawsuit challenging the statute in March and temporarily blocked the law.
“The word ‘drag’ never appears in the text … but the court cannot escape that ‘drag’ was the one common thread in all three specific examples of conduct that was considered ‘harmful to minors’ in the legislative transcript,” Parker wrote.
Parker used an example of a female performer who wore an Elvis Presley costume and mimicked the iconic musician, but could be at risk of punishment under the drag law because she would be considered a “male impersonator”.
According to the complaint, the Republican state representative Chris Todd and the Republican state senator Ed Jackson helped lead an effort last year to block a drag show at a park in Jackson, west of Nashville, as part of a Pride festival.
Todd later confirmed he had not seen the performance but nevertheless pursued legal action to stop it. Organizers reached a settlement to hold the event indoors with an age restriction.
That incident and other Republican objections to drag shows were used as examples by Parker as reasons that the anti-drag law was “geared towards placing prospective blocks on drag shows – regardless of their potential harm to minors”.
“Whether some of us may like it or not, the supreme court has interpreted the first amendment as protecting speech that is indecent but not obscene,” the judge wrote.
The drag law was the second major proposal targeting LGBTQ+ people passed by Tennessee lawmakers this year. Lee also signed legislation banning most gender-affirming care, which is being challenged in court.
English (US)