Tennessee’s first-in-the-nation law designed to place strict limits on drag shows is unconstitutional, a federal judge says.
The law is both “unconstitutionally vague and substantially overbroad,” according to the ruling late Friday by U.S. District Judge Thomas Parker, who was appointed by former President Donald Trump. The judge also said the statute encouraged “discriminatory enforcement.”
“There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” Parker said.
“Simply put, no majority of the Supreme Court has held that sexually explicit — but not obscene — speech receives less protection than political, artistic, or scientific speech,” he said.
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.
Parker used the example of a female performer wearing an Elvis Presley costume and mimicking the iconic musician could be at risk of punishment under the drag law because they would be considered a “male impersonator.”
The Memphis-based Friends of George’s, an LGBTQ+ theater company, filed a complaint in March, saying the law would negatively impact them because they produce “drag-centric performances, comedy sketches, and plays” with no age restrictions.
Initially, the complaint listed Republican Gov. Bill Lee, Attorney General Jonathan Skrmetti and Shelby County District Attorney General Steven Mulroy as defendants, but the plaintiffs later agreed to dismiss the governor and top legal chief — although Skrmetti continued to represent Mulroy for this case.
A spokesperson for both Skrmetti and Mulroy did not immediately respond to requests for comment on Parker’s ruling.
Senate Majority Leader Jack Johnson, the Republican who was one of the law’s main sponsors, said he was disappointed with the ruling.
“Sadly, this ruling is a victory for those who support exposing children to sexual entertainment,” Johnson said, adding that he hoped Skrmetti will appeal the “perplexing ruling.”
Tennessee’s Republican-dominated Legislature advanced the anti-drag law earlier this year, with several GOP members pointing to drag performances in their hometowns as reasons why it was necessary to restrict such performances from taking place in public or where children could view them.
Yet the actual word “drag” doesn’t appear in the statute. Instead lawmakers changed the state’s 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 or topless dancers.
The governor quickly signed off on the statute and it was set to take effect April 1. However, to date, the law has never been enforced because the federal judge had sided with the group that challenged the statute in March, and he temporarily blocked the law.
Parker also cited how the law’s sponsor, Republican state Rep. Chris Todd, had previously helped lead an effort to block a drag show in his district before introducing the drag ban proposal. Todd later confirmed that he hadn’t seen the performance, but nevertheless pursued legal action to stop the show and the event was held indoors with an age restriction.
This incident was among the several reasons to believe that the anti-drag law was “geared towards placing prospective blocks on drag shows — regardless of their potential harm to minors,” Parker wrote.
The drag law marks the second major proposal targeting LGBTQ+ people passed by Tennessee lawmakers this year. Lee signed into law GOP-backed legislation banning most gender-affirming care, which is being challenged in court.