By Mark Satta
On March 2, 2023, Tennessee became the first state to enact a law restricting drag performances.
This law is part of a larger push by Republican lawmakers in numerous states to restrict or eliminate events like drag shows and drag story hours.
These legislative efforts have been accompanied by inflammatory rhetoric – not grounded in fact – about the need to protect children from “grooming” and sexually explicit performances.
Such rhetoric reveals that those seeking to restrict drag performances sometimes don’t understand what drag is or seeks to do.
Drag is an art form in which performers play with gender norms. Drag shows often include dancing, singing, lip-synching or comedy. Some common forms of drag include cisgender male and transgender female performers dressed in stereotypically feminine ways and cigender female and transgender male performers dressed in stereotypically masculine ways.
Drag artists also participate in many other kinds of events. For example, drag queens host family-friendly story hours at local libraries where they read age-appropriate books to children.
Current Supreme Court decisions suggest that laws like the one just passed in Tennessee probably violate the First Amendment’s protection of free speech. This is, in part, because many drag performances are protected by the First Amendment, which safeguards not only spoken, written, and signed speech but also many other actions meant to convey messages.
Republican legislators appear to have written the law to try to avoid running afoul of the First Amendment by treating drag shows as if they meet the legal definition of obscenity. Speech, including expressive conduct, that meets the Supreme Court’s criteria for obscenity is not covered by First Amendment protection.
I’m a scholar who studies U.S. free speech law. Looking at the text of Tennessee’s new law, I see several ways in which this anti-drag law appears susceptible to significant First Amendment challenges.
AP Photo/Mark Zaleski
Tennessee’s new law
The law amends what Tennessee considers “adult cabaret entertainment” and bans “male or female impersonators” from performing on public property or in any other location where the performance “could be viewed by a person who is not an adult,” when such performances are “harmful to minors” as that phrase is defined by Tennessee law.
This law thus regulates not only public spaces but also privately owned locations like bars and performance venues. A first violation is a misdemeanor. Subsequent violations are felonies.
Because the law is limited to drag performances that are “harmful to minors,” in theory, most drag shows should be unaffected.
But various Republican legislators in Tennessee have recently fought to prevent even vetted family-friendly drag shows with no lewd or sexual content from being held in public.
Given this, drag performers and other artists have reasonable grounds for suspecting that Tennessee officials may seek to interpret the new law broadly to include many kinds of drag performances and other shows that play with gender norms.
Given the popularity of drag shows, this new law could stifle a lot of expression and damage the ability of full-time drag performers to make their living.
But even if Tennessee officials interpret the new law narrowly, the law still appears likely to run afoul of the First Amendment.
Drag is protected ‘expressive conduct’
The First Amendment protects more than just written, oral or signed speech. It also protects many other actions designed to convey ideas. The legal terms for these actions are “expressive conduct” or “symbolic speech.”
Some activities courts have recognized as expressive conduct include making and displaying art and music, picketing, marching in parades, desecrating a U.S. flag, burning a draft card, dancing and other forms of live entertainment.
Drag shows typically consist of various forms of protected speech – such as telling jokes and introducing performers – and protected expressive conduct such as lip-synching and dancing. Thus, drag shows are usually covered by the First Amendment.
But Tennessee’s new law insinuates that drag performances might be part of a category of speech exempt from the First Amendment protection: legally defined obscenity. If this were so, then Tennessee’s law likely would pass constitutional muster. But the law seems to target more than merely legally obscene material.
However, Tennessee lawmakers have not provided viable examples of obscene drag performances in Tennessee. And current Supreme Court precedent makes it highly unlikely that all the expressive conduct Tennessee seeks to regulate falls into the narrow legal category of obscenity.
Defining obscenity
In considering whether something is legally obscene, the Supreme Court requires courts to consider whether (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct defined by the applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
In the relevant part of its criminal code, Tennessee law states that:
“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.”
Given the similarities between Tennessee’s description of “harmful to minors” and the Supreme Court’s definition of “obscenity,” Tennessee appears to be trying to avoid First Amendment scrutiny for its new law.
But there are some important differences between Tennessee law and the Supreme Court’s description of obscenity.
Perhaps most importantly, the Supreme Court limits obscenity to speech that lacks serious literary, artistic, political or scientific value full stop; not just work that lacks such serious value specifically for minors.
As is widely recognized, drag is artistic and political. Drag performers use drag to push artistic boundaries and to discuss pressing political issues.
There is no First Amendment requirement to determine when or whether the value of speech applies “for minors.” Adults living in a democratic society need to be able to discuss a wide range of issues, not all of which will have value for children. Supreme Court free speech precedent recognizes this.
Thus, Tennessee probably cannot rely on a claim that it is criminalizing only legally obscene expressive conduct. Instead, it must regulate drag performances in accordance with the First Amendment’s free speech protections.
Discriminatory and overly broad
Freedom of speech, like all rights, is not absolute.
The Supreme Court has allowed states to put some limits on protected speech. For example, states may impose restrictions on the time, place and manner in which speech occurs, so long as such limitations are content-neutral.
Examples include requiring permits to hold parades on city streets and not allowing loud music between midnight and 6 a.m. on public sidewalks.
However, Tennessee’s law goes far beyond these kinds of limited regulations of protected speech in at least two ways.
First, it legislates more than mere time, place and manner restrictions. Instead, the law bars, at all times, “male or female impersonation” that it deems “harmful to children” from any public property and from many private venues, too. This is a wholesale ban on such speech in all public forums and in many private spaces. Courts will likely find this too broad.
Second, by singling out “male and female impersonators,” Tennessee’s law fails to be content-neutral. It instead discriminates on the basis of the expressive conduct’s content.
Tennessee’s new law bolsters the case that anti-drag laws are antidemocratic, discriminatory and unconstitutional.
This story has been corrected to describe the amended version of Tennessee’s SB3, which was signed into law on March 2, 2023, and to remove reference to a Kentucky state legislator.
Mark Satta is Assistant Professor of Philosophy at Wayne State University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
Paul says
The first amendment doesn’t protect against the sexualization of children. We use to call making any sexual inappropriate comments or gestures to children perverse. Now we say something against it and the world explodes. Values. Morals. Decency. Respect children.
Dave Roskins says
Thank you!
Nancy N. says
Did you even read the article? Have you read the text of the legislation? These laws aren’t targeted at “sexually inappropriate” content. They are targeted at ANY content that involves a person dressing as the gender not listed on their birth certificate. These pieces of legislation equate simply doing that with obscenity, regardless of what a person says or does while dressed that way.
If Republicans were so concerned about “grooming” and protecting children, they’d be making laws restricting Catholic priests and guns – both of which are actually proven to have done way more harm to children than drag queens ever have. (And don’t tell me “oh that would be unconstitutional!” – the GOP doesn’t seem to really care if what they do is constitutional these days as long as it targets people they don’t like.)
Jonah Hirschy says
Did you even read the article? The law targets drag shows or places where someone “impersonating” a man or a woman is. also sexualization of children is not okay and not protected by the constitution. This law would be unconstitutional if children weren’t involved.
Okkkrrrrr says
The KKK is protected by the 1st Amendment with there sheets but a drag queen isn’t? Republicans =HATE
Laurel says
Paul: No more Shakespearean plays, drop Halloween, monks need to get pants, Obi-wan Kenobi finally got pants, Scottish kilts are a no, the Pope is out of compliance and the best impersonation of Cruella Deville I ever saw should go to jail. Good thing vaudeville is over with, not to mention Uncle Milty.
Drag is not the *sexualization* of children. You are being played.
Pogo says
@Respect children
And take personal responsibility for their survival:
https://www.google.com/search?q=top+10+causes+of+death+of+us+children
Current Causes of Death in Children and Adolescents in the United States
“The Centers for Disease Control and Prevention (CDC) recently released updated official mortality data that showed 45,222 firearm-related deaths in the United States in 2020 — a new peak.1 Although previous analyses have shown increases in firearm-related mortality in recent years (2015 to 2019), as compared with the relatively stable rates from earlier years (1999 to 2014),2,3 these new data show a sharp 13.5% increase in the crude rate of firearm-related death from 2019 to 2020.1 This change was driven largely by firearm homicides, which saw a 33.4% increase in the crude rate from 2019 to 2020, whereas the crude rate of firearm suicides increased by 1.1%.1 Given that firearm homicides disproportionately affect younger people in the United States,3 these data call for an update to the findings of Cunningham et al. regarding the leading causes of death among U.S. children and adolescents.4…”
https://www.nejm.org/doi/full/10.1056/nejmc2201761
Sounds bad? It’s far worse. Compare things (casualty reports) to things of a kind (casualty reports). Then vote accordingly.
People also ask
How many US died in war on terror?
The ongoing series of conflicts and interventions in the Middle East and North Africa, collectively referred to as the War on Terror in the west, has a combined death toll of more than 7,000 for the U.S. military since 2001.Jan 2, 2023…”
https://www.google.com/search?q=kia+global+war+on+terror
Skibum says
First let me say that drag shows are not my preferred form of entertainment, but I have been persuaded to attend quite a few of them over the course of my lifetime by friends who wanted me to go with them. In all of the drag shows I have attended in restaurants, clubs, etc., not a single one was anything close to being pornographic. Drag shows involve those who dress up and strut around while singing (or if they cannot sing well, they are more likely to lip sync to songs), or the show is more of a comedy stand-up routine. The drag shows that are performed at night at adult only clubs certainly may have adult-themed content just like any other 21 or older nightclub would have for an adult stand-up routine. For those who think it is their calling in life to try to ban or severely restrict the public drag show performances, I say this… GET A LIFE! drag performances in general, and in particular those shows performed during the day in public venues that are open to all ages are no more pornographic than Dustin Hoffman’s drag performance in “Tootsie” or Robin Williams’ drag performance in “Mrs. Doubtfire”.
Secondly and more importantly, imagine the public outcry and all of the civil litigation that would have followed had the film industry used the same so-called “child protection” measures that DeSantis and other GOP led states are trying to implement today when there was a lot of concern about what type of movies children under the age of 18 should be allowed to see at theaters. Back then they did the right thing by implementing the MPAA movie rating system, and theaters restricted attendance to those under 18 unless accompanied by their parents or other responsible adults. They didn’t try to ban films that had certain types of adult content. That would have been an unconstitutional violation of the first amendment. Fast forward to today and the far-right wing of the GOP has fully embraced unconstitutional first amendment violating legislation like the bans on drag performances simply because they do not like or agree with it, and they want drag performers and all LGBT related activities AND people gone from society. They used to shout about parent’s rights when they agreed with parents making decisions for their underage children to have vaccines or not, but now they don’t even want parents to be able to decide what type of comedy performances they can take their kids to if they choose to do so. The bottom line is that all of this feigned concern about “protecting children” is total BS and is more about eliminating drag shows just like the GOP would love to eliminate all mention of LGBT people and our lives in society, in schools, in books, and in entertainment simply because far-right wing of the GOP is bigoted and discriminatory, and they will continue to target and discriminate against anyone and anything that is not just like them. We all have a moral obligation to stand up to them and call this blatant discrimination out every time it happens, or it will never end.
Willy Boy says
While reading your post, I was thinking to myself how I’d never been to a drag show or even seen one on TV. Then I remembered my youth in grade school in Lake County, Fl during the segregated era, and the yearly Minstrel Show. Highly politically incorrect, I know. One segment was the Can Can, with some of the hairy-legged fathers in Tu Tu’s. Got the biggest laughs of the night. – Thanks for jogging my memory.
ralph6 says
Paul says is correct. Children need to be protected. It’s sad there’s so much gender confusion these days. Growing up is hard enough without outsiders actively spreading doubt about children’s experience of self. Minors should be protected. When they reach majority then they’re at a stage that society has traditionally accepted they can make decisions for themselves. Then they can explore. Prior to that the parents are, or should be, in charge.
Nephew Of Uncle Sam says
Today drag shows tomorrow Picasso?
IMYellowstone says
Tennesse: Pornography? It depends on geography.
What about strip clubs? TV soft porn? TV hardporn? Netflix? The Streakers at football games? Women in a topless swimsuit? Nude beaches? Sordid newspaper articles? Expressive artwork in any form; paint and music?
Wait up folks! They are after your basic human rights.
VOTE intelligently next time.
Marek says
The hypocrisy of the Republicans is amazing at times. They want to “protect ” the children from the drag queens on the sidewalks but when their supporters show up with very vulgar banners and yelling on the beach boulevard ,busy intersection in the middle of the town or on the overpass that doesn’t bother them. Neither does it bother the Sheriff ‘ s office. I did call once to complain and was brushed off.
Concerned Citizen says
That’s because they enjoy the protection of a Republican Sheriff.
It explains a lot why Joe Mullins was able to get away with what he did as an elected official. Including shady ticket scams, sending busses to DC, wreck less driving and name dropping. Random drug dealer calls then turning around and snitching to pay hero. The list goes on. And I suspect in most other areas he would have been locked up. But here he got a free pass. No Joe we haven’t forgotten. Nor will we.
Pogo says
@CC
Center, X-ring.