Judge rules Tennessee drag ban unconstitutional

A federal judge appointed by President Donald Trump declared Tennessee’s drag ban law unconstitutional late Friday.

In a ruling dated June 2, Judge Thomas Parker of the U.S. District Court for the Western District of Tennessee sided with the plaintiff in a lawsuit brought by the Memphis-based LGBTQ theater group Friends of George’s against the district attorney general of Shelby County in its argument that the state’s Adult Entertainment Act is “substantially overbroad.”

“After considering the briefs and evidence presented at trial, the Court finds that—despite Tennessee’s compelling interest in protecting the psychological and physical wellbeing of children—the Adult Entertainment Act (“AEA”) is an UNCONSTITUTIONAL restriction on the freedom of speech and PERMANENTLY ENJOINS Defendant Steven Mulroy from enforcing the unconstitutional statute,” Parker wrote in his ruling.

The Adult Entertainment Act, which was signed into law by Tennessee Gov. Bill Lee on March 2, created an offense for “a person who engages in an adult cabaret performance on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult.” It defines “adult cabaret entertainment” as “adult-oriented performances that are harmful to minors, as such term is defined under present law; feature go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; and include a single performance or multiple performances by an entertainer.”

A first offense under the law is charged as a Class A misdemeanor, with a maximum sentence of a little less than a year, but subsequent offenses could be charged a Class E felony, with a maximum sentence of six years and possible loss of voting rights.

Parker’s decision only applies to enforcement of the law in Shelby County, which encompasses the city of Memphis, but attorneys told the Memphis Commercial Appeal that attempts to enforce the law elsewhere in the state are likely to be successfully challenged in court.

Friends of George’s and LGBTQ advocacy group GLAAD celebrated Parker’s decision in a joint statement.

“This ruling is a turning point and we will not go back. Every anti-LGBTQ elected official is on notice that these baseless laws will not stand and that our constitutional freedom of speech and expression protects everyone and propels our culture forward,” GLAAD said. “Congratulations and thank you to Friends of George’s and their attorneys for speaking up and fighting for everyone’s freedom. Their bravery will inspire many other challenges to discrimination.”

Friends of George’s said: “This win represents a triumph over hate. Our first amendment rights were affirmed today as drag artists and makers of theatre. Similar to the countless battles the LGBTQ+ community has faced over the last several decades, our collective success relies upon everyone speaking out and taking a stand against bigotry.”

Tennessee Senate Majority Leader Jack Johnson, who sponsored the bill, said in a statement posted to Twitter:

I’m disappointed with the judge’s decision on Senate Bill 3, which ignored 60 years of precedent allowing regulation of obscene entertainment in the presence of minors. Sadly, this ruling is a victory for those who support exposing children to sexual entertainment. Despite the Court’s perplexing reading of the law, I am confident – and always have been – that this legislation does nothing to suppress the First Amendment. It is narrowly tailored to further the compelling interest of the state to protect children from exposure to obscene entertainment. It is my hope that Attorney General [Jonathan] Skrmetti will appeal the decision to the 6th Circuit. Regardless, we will not waver in our efforts to protect the children of Tennessee.

In a statement shared with the Commercial Appeal, Skrmetti insisted the law remains in effect outside of Shelby County and said his office would likely appeal Parker’s decision.

“The scope of this law has been misrepresented in public by those more interested in pressing a narrative than in reading the statutory text. The Adult Entertainment Act remains in effect outside of Shelby County,” the statement said. “This narrowly-tailored law protects minors from exposure to sexually explicit performances. Its operative language is rooted in the U.S. Supreme Court’s long-established First Amendment precedent. We are reviewing the order and expect to appeal at the appropriate time.”

Published with permission of The American Independent Foundation.