Sixth Circuit Discovers One Weird Trick To Greenlight Unconstitutional Drag Bans

Hint: It is standing.

https://www.flickr.com/photos/oliviachow/14374913968/

Last week, the Sixth Circuit issued a powerful reminder that the doctrine of standing is often used to block challenges to obviously unconstitutional legislation in federal court.

It came in a case called Friends of George’s, Inc. v. Mulroy involving Tennessee’s recently enacted criminal drag ban. Unbelievably, the appellate panel ruled that a group that promotes public drag shows lacks standing to challenge a law prohibiting it from staging public drag shows. This ruling is actually worse than a loss, since it means that the only way for anyone to challenge a patently unconstitutional law is to get themselves arrested and risk up to a year in prison.

Drag shows are not porn.

This should not have to be said in the year 2024.

RuPaul’s Drag Race has been on for 15 years, won 24 Emmy Awards, spawned at least five spinoffs and international adaptations in the United Kingdom, Canada and Australia, as well as Belgium, Brazil, Chile, France, Germany, Italy, Mexico, Norway, the Philippines, Spain, Sweden, and Thailand. You can go see a drag show at the baseball park. And before America entered its latest paroxysm of transbashing, we enjoyed Dame Edna, and Big Momma, and Mrs. Doubtfire, and nobody claimed they were pornographic.

But since half the country seems to want to pretend otherwise, let’s say it again: DRAG SHOWS ARE NOT PORN.

Nevertheless, the same people who freaked out because a pretty girl once said something nice about shitty beer now equate gender nonconformity with pornography. Anything relating to LGBTQ+ issues, even something as innocuous as a drag show, is coded as “adult content,” unsuitable for impressionable 17-year-olds carrying around a hard-core pornography streaming device in their pockets.

It's not as though there aren’t real problems to tackle in the Volunteer State. The Tennessee Bureau of Investigation determined that the biggest criminal priorities in the state are human trafficking, sexual assault, opioid abuse, Medicaid fraud, identity theft, and cops shooting innocent people. Voters list poverty, education, and healthcare as their top three concerns.

But when Tennessee’s overwhelmingly Republican legislature convened in 2023, they had none of those things on their minds. Instead, two of the first three bills passed were SB1, banning gender-affirming healthcare, and SB3 (the “Adult Entertainment Act”), which prohibits public drag shows and was signed into law by Gov. Bill Lee on March 2, 2023.

And because drag shows clearly don’t fit any rational definition of pornography, SB3 amended the statutory definition of “Adult-Oriented Establishments” to include “adult cabaret entertainment,” described as “adult-oriented performances that are harmful to minors” featuring “male or female impersonators, or similar entertainers.” In other words, SB3 redefined drag shows as inherently pornographic and dangerous to children, conflating content available on basic cable with topless dancing and strippers. This allowed legislators to prohibit drag performances in public or anywhere where they “could be viewed by a person who is not an adult.”

Draconian penalties

The new law also drastically changed the enforcement mechanism. Previously, it applied only to the operators (such as the owners of a movie theater) and first-time offenders were fined $500 and asked not to do it again. SB3 added criminal penalties for the performers themselves, charging first-time offenders with a Class A misdemeanor, the same level offense as domestic assault, which carries up to a year in prison. Repeat offenders may be charged with a felony and face up to six years in jail.

Friends of George’s [FOG], a 501(c)(3) nonprofit organization based in Memphis, Tennessee that produces “drag-centric performances, comedy sketches, and plays,” immediately sued Shelby County District Attorney General Steven Mulroy to block enforcement of the law. They argued that, although there’s nothing wrong with having actual adult-themed drag shows at bars and clubs, they also wanted “to provide a space for some non-adults to enjoy drag outside of stigmatized, age-restricted venues.” Since 2011, FOG has produced “PG-13”-level drag plays at the Evergreen Theater in Memphis, an indoor venue with no age restrictions. Under the plain language of SB3, FOG performers could face serious felony charges if they continued to do so.

The case, captioned Friends of George’s, Inc. v. Mulroy, landed on the docket of US District Court Judge Tommy Parker, a Trump appointee, who permanently enjoined SB3 from going into effect.

Judge Parker ruled that SB3 violates the First Amendment in about a half-dozen ways: It discriminate on the basis of content and viewpoint. It was enacted with an unconstitutional purpose to chill protected expression. It fails strict scrutiny in that it is neither narrowly-tailored nor does it serve a compelling state interest. It’s unconstitutionally vague. And, to top it all off, SB3 is also unconstitutionally overbroad:

Viewed together, the AEA’s text and legislative history point this Court to the conclusion that the Tennessee General Assembly passed the AEA for an impermissible purpose.  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.  

Judge Parker’s 70-page opinion is what lawyers would call “bulletproof.” There was no way that the Sixth Circuit was going to be able to save SB3 — it was just too unconstitutional, in too many ways.

And yet …

Fear not, bigots, the Sixth Circuit is here!

In order to prove that it had standing to sue, FOG needed show an injury-in-fact, defined as a “threatened injury” (i.e., the fear of arrest) that “is real, immediate, and direct.” Judge Parker easily connected those dots, noting that the bill’s sponsor openly admitted that he was targeting “drag shows,” and that the word “drag” appears 29 times in the transcript of the debate over SB3’s passage. Thus, it seems pretty “real, immediate, and direct” that a bill designed to criminalize drag shows would go after a producer of drag shows.

If anything, Judge Parker was overly solicitous of the bad faith attempt to retcon SB3 as something other than a drag ban. At trial, the State insisted that SB3 prohibits only those performances “that are harmful to minors,” suggesting that a show which featured “male or female impersonators” but was not “harmful to minors,” would be totally fine.

But that reading of SB3 required ignoring both the legislative debate and the plain meaning of the statute, pretending instead that the law was enacted to protect the “good” drag shows that aren’t harmful to kids. That’s why those conservative Republicans paired it with a ban on gender-affirming care! So if FOG didn’t intend to put on drag shows that were inappropriate for minors, it had nothing to worry about.

Judge Parker actually accepted that argument with a straight face. He then turned to Tennessee Code 39-17-901(6), which defines “harmful to minors” as any depiction of “nudity, sexual excitement [or] sexual conduct” that:

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

In other words: the question before Judge Parker was whether the people actually in charge of enforcing SB3 would think that Friends of George’s drag shows were: (1) “prurient,” meaning of or appealing to sex; (2) the kind of things that adults in Tennessee probably think kids shouldn’t see; and (3) lacking in literary or artistic value for minors. Subsection 14 further defines “sexual conduct” as “simulated” sexual conduct that “gives the appearance of ultimate sexual acts.”

FOG played some videos and testified about its shows at trial, and Judge Parker found that they definitely constituted simulated sexual conduct:

[A] production entitled “Paradise by the Dashboard Light,” in which six individuals—half of whom were characterized as “female impersonators”—pretended to sing while acting out the lyrics to the song. During the four-minute song, the performers made sexual gestures with each other behind a translucent curtain.

The second is a performance entitled “Bitch, You Stole My Purse,” which is about a “lot lizard,” and involved “blow jobs and possibly having sex as well as pooping in somebody’s purse.”  And the third is a skit entitled “Dick in a Box,” which involved “two people presenting gift packages where their penises would be . . . penis is in a box, it’s got tissue around it.”

Changing the rules

Judge Parker found that the plaintiffs had standing, since their program of simulated sex acts pretty clearly met the statutory definition of “harmful to minors.” This tied the Sixth Circuit’s hands, since it was obligated to defer to the trial court’s factual findings, and the only way to kick FOG out of the case was to simply rewrite the rules on appeal.

And so, of course, that’s exactly what they did.

Instead of holding that the plaintiffs were required to meet the statutory definition of “harmful to minors,” the Sixth Circuit instead held that FOG needed to meet the much higher burden articulated by the Tennessee Supreme Court when interpreting a different statute in a 1993 case called Davis-Kidd Booksellers, Inc. v. McWherter. Under that test, the plaintiff was required to show that their shows lacked “serious literary, artistic, political, or scientific value for a reasonable 17-year-old.” (emphasis in original).

The Sixth Circuit then proceeded to examine FOG’s own promotional materials, in which it “likened” its shows “to Shakespeare and Ancient Greek theater.” Since FOG thinks its program has artistic value for smart 17-year-olds, the Sixth Circuit reasoned that FOG had nothing to fear from the bigots and morons driving trans panic throughout the state.

The appellate panel then dissolved the injunction and remanded the case to the trial court for more factfinding. If FOG wishes to pursue the case, it will now be forced to demonstrate that its shows are in fact harmful to minors, and thus it is in imminent danger of prosecution — something that it it is probably loath to do. (The plaintiffs could also appeal to the Supreme Court, which seems unlikely to take the case.)

As a practical matter, this means that the pre­­-enforcement challenges to SB3 are now dead. The only viable plaintiff at the Sixth Circuit is someone willing to say “my product is harmful to minors, and I intend to show it to children anyway.” Instead, we will have to wait until a drag artist is actually arrested and charged with violating the law for the courts to consider whether it is permitted in America to criminalize dressing in drag in public.

In short, the Sixth Circuit permitted a facially unconstitutional statute to go into effect by playing games with standing and daring the state of Tennessee to prosecute. And perhaps Tennessee will simply refrain from enforcing SB3, and enjoy an unending period of self-censorship by drag performers who fear getting thrown in jail. But that is not how the law is supposed to work.