Tennessee’s Drag Ban Gets Green Light from Appeals Court
A federal appeals court ruled 2-1 on a technicality to dismiss a challenge to a Tennessee law restricting where drag shows can be performed.
A federal appeals court has allowed Tennessee authorities to begin prosecuting business owners who host drag performances at their venues.
On Thursday, July 18, the 6th U.S. Circuit Court of Appeals, in a 2-1 decision, dismissed a lawsuit challenging Tennessee’s “Adult Entertainment Act” (AEA), which prohibits drag in public spaces and any venue where minors might be present.
Under the law, which categorizes “male or female impersonators” as a form of adult cabaret similar to shows featuring strippers or topless performers, drag queens who violate the law can be charged with a misdemeanor, or a felony for repeat offenses, and owners of venues who allow them to perform can be fined.
Detractors of the law have argued it is so vague that its provisions will allow local district attorneys to target and prosecute members of the LGBTQ community out of spite or animus.
Circuit Judges Eugene Siler, Jr., a George H.W. Bush appointee, and John Nalbandian, a Trump appointee, dismissed the lawsuit. They reversed a lower court’s ruling that the AEA was an unconstitutional infringement on performers’ First Amendment rights.
The judges also lifted an injunction that prohibited local authorities in Shelby County — which encompasses the city of Memphis and its suburbs — from enforcing the law
Writing for the court, Nalbandian found that the Memphis-based LGBTQ theater company, Friends of George’s (FOG), lacked legal standing to sue over the law, because its “drag-centric performances, comedy sketches, and plays” did not meet specific criteria under Tennessee law to be considered “harmful to minors.”
As a result, he argued, the theater company failed to prove it was at risk of potential future prosecution and lacked standing to bring the lawsuit.
Nalbandian and Siler declined to address whether the law’s content violated the First Amendment.
But Circuit Judge Andre Mathis, a Biden appointee, noted in a dissenting opinion that the majority’s ruling conflicts with both past 6th Circuit precedent, as well as Supreme Court precedent.
Mathis argued that Friends of George’s had standing to sue because the content of their skits might be considered “adult-oriented performances.”
And because the theater where the troupe performs does not distinguish between adult and child ticket holders, and does not card all patrons, a handful of minors could end up seeing the shows — thus violating the law, and making the theater company subject to prosecution.
Mathis found that the AEA is not simply a “time, place, or manner restriction” that might otherwise be considered reasonable, but rather a content-based restriction targeting shows that lawmakers may personally deem offensive or objectionable — a clear violation of the First Amendment.
Tennessee Attorney General Jonathan Skrmetti celebrated the 6th Circuit ruling, claiming that opponents of the law have misrepresented it since its adoption.
“As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression,” Skrmetti said in a statement. “But as the Court noted, Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children. The Court of Appeals focused on what the law actually says and ordered the case dismissed.”
State Rep. Aftyn Behn (D-Nashville) called the 6th Circuit ruling a “misguided attack on the LBGTQ+ community” in an interview with The Associated Press.
“This isn’t about protecting kids; it’s about spreading fear and division,” Behn said of the AEA. “It’s ironic that those who claim to support small government are the first to impose it on our personal freedoms.”
Melissa Stewart, one of the attorneys for Friends of George’s told The Advocate that her clients were disappointed with the appeals court’s ruling, noting that the majority declined to weigh in on the law’s lack of constitutionality.
“As Judge Mathis’s dissent makes clear, this holding is contrary to Sixth Circuit and Supreme Court case law,” Stewart said, adding that her clients would be seeking en banc review, in which the full 6th Circuit, not a three-judge panel, would hear the case.
As Mathis noted in his dissent, if left unchallenged, the 6th Circuit ruling could be cited in future cases against similar laws in other states, further infringing on performers’ rights to free speech and freedom of expression.
That is precisely what opponents of the law fear, noting that at least one overzealous district attorney in Tennessee has previously sought to enforce the law by attacking a Pride festival.
Like dozens of other Republican-led states, Tennessee has repeatedly passed laws targeting LGBTQ rights and visibility, with transgender people, drag, and gender-nonconformity being only the latest obsession of moralizing, right-wing lawmakers, who in previous years had focused primarily on blocking same-sex couples from marrying or adopting children.
According to the Human Rights Campaign, Tennessee has enacted more anti-LGBTQ laws than any other state since 2015.
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