A brief history:
In January, a bill was introduced in Tennessee to restrict “adult cabaret performances” (defined as “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest, or similar entertainers, regardless of whether or not performed for consideration”) in public or in front of children.
Although supporters of the Adult Entertainment Act bill claimed the intent was to “protect children,” opponents of the bill pointed out that it was targeting drag queens since topless dancers, exotic dancers, and strippers are already restricted from performing in front of children. A first offense would be a misdemeanor (with a $2500 fine and a possible sentence of one year in prison) but a second offense would be considered a felony and punishable by up to six years in prison.
On February 9, the Tennessee Senate passed the bill 26-6. On February 23, the Tennessee House of Representatives passed the bill 74-19. On March 2, the Tennessee Senate passed the bill and Governor Bill Lee immediately signed it. The law was set to go into effect on April 1.
The weekend before Lee signed the bill, a photo from his 1977 high school yearbook showing him dressed in drag emerged online. When asked about it, Lee said, “What a ridiculous, ridiculous question that is, conflating something like that to sexualized entertainment in front of children, which is a very serious subject.” His spokesperson later said, “The bill specifically protects children from obscene, sexualized entertainment, and any attempt to conflate this serious issue with lighthearted school traditions is dishonest and disrespectful to Tennessee families.”
On March 28, the Memphis-based nonprofit LGBTQ+ theatre company Friends of George’s, which produces drag-centric performances, comedy sketches, and plays for all ages, filed a lawsuit alleging that the new law violated free speech. Their suit pointed out: “Modern drag performances typically do not contain nudity. More often than not, drag performers wear more clothing than one would expect to see at a public beach, and many drag shows are intended to be appropriate for all ages.”
The lawsuit went on to say: “Under this reading of the law, a drag queen wearing a mini skirt and a cropped top and dancing in front of children violates this statute, but a Tennessee Titans cheerleader wearing precisely the same outfit doing precisely the same routine does not, because she is not a ‘female impersonator.’ Thus, the prohibited speech is defined by the identity of the drag performer – and the message he conveys. That is a content-based restriction of speech protected by the First Amendment.”
As a result of the lawsuit, on March 31 a judge temporarily blocked the law from going into effect. When the judge issued a temporary injunction, he wrote that the state had failed to make a compelling argument as to why Tennessee needed the new law, adding that the court also agreed the statute was likely vague and overly broad.
On June 2, U.S. District Judge Thomas Parker (who was nominated by Tr*mp in 2017) ruled that the new law was both “unconstitutionally vague and substantially overbroad” and encouraged “discriminatory enforcement.” He stated that “the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.” In his ruling, the judge 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.”
Some other highlights from the ruling:
While Tennessee has the power to protect children from harmful materials, it must do so without an “unnecessarily broad suppression of speech addressed to adults.” Reno, 875 U.S. at 875. Given an appropriate scope, it may regulate adult-oriented performers who are harmful to minors. But it cannot, in the name of protecting children, use the AEA to target speakers for a reason that is unrelated to protecting children. The Court finds that the AEA’s text targets the viewpoint of gender identity – particularly those who wish to impersonate a gender that is different from the one with which they are born. This text makes the AEA a content-based, viewpoint-based regulation on speech.
The Court finds that the AEA’s text discriminates against a certain viewpoint, imposes criminal sanctions, and spans a virtually unlimited geographical area. As a criminal statute that regulates the performers, the AEA offers neither a textual scienter requirement nor affirmative defenses. For these reasons, the AEA can criminalize—or at a minimum chill—the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County. Such speech is protected by the First Amendment.
A closer look at the transcript, which is only 100 pages long, reveals at least twenty-nine references to “drag,” and eleven references to “male and/or female impersonators” which is part of the AEA’s text. From this, the Court concludes that the legislature had a robust debate on the statutory text of “male or female impersonator.” Despite repeated objections from fellow legislators about the language and purpose of the AEA and the broad sweep of the act, the legislative history shows that the legislature knew what they were doing and deliberately chose to retain those words in the statute. So, those words are there because the legislature intended to keep them there. The word “drag” never appears in the text of the AEA. 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.
This District Court does not find that the Tennessee General Assembly’s predominate concerns were “increase in sexual exploitation.” Rather, the Corut finds that their predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born. Defendant’s identification of “increase in sexual exploitation” as the legislature’s predominate concern in passing the AEA draws not from legislators, but from Ms. Starbuck’s testimony. (ECF No. 58 at PageID 796) (citing ECF No. 35-1 at PageID 528 (“It’s no wonder we have skyrocketing mental health crisis amongst our confused and vulnerable youth with more sexual exploitation crimes reported than ever before.”). The only other time “sexual exploitation” was mentioned in the legislative transcript was in Ms. Starbuck’s testimony. (Id. at PageID 32 (“[Children] are seeing adults clap every time an article of clothing is removed, the adults are thunderously clapping. And so they are making associations that when you take your clothes off, you’re rewarded money . . . But continuing that behavior is sending that message to children and it[’]s normalizing that sexual exploitation.”).)
But from the very beginning of this suit, Plaintiff has raised the issues this Court just discussed about the AEA’s lack of affirmative defenses, silence on a scienter requirement, novel punitive scheme, and overbroad geographical scope. (ECF No. 10 at PageID 59–60.) Instead of substantially addressing these concerns, Defendant focused his theory of the case on why the Court should adopt his reading of the AEA. The Court rejects that theory, and finds that Defendant has not met his burden of proving the AEA is the least restrictive means to achieve Tennessee’s legitimate compelling interest in protecting minors. Defendant’s argument fails and the Court finds that the AEA is not narrowly tailored to serve its legitimate compelling interest.
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