Do We Need A First Amendment Theory for Drag Performances?
A Federal Judge ripped apart Tennessee’s anti-drag law, but could a more comprehensive theory for why the First Amendment protects things like drag shows strengthen free speech jurisprudence?
On June 2, 2023, Judge Thomas Parker of the U.S. District Court for the Western District of Tennessee, who Donald Trump appointed, ruled that the state’s anti-drag show law — the Adult Entertainment Act (AEA) — was unconstitutional. The law, signed by Governor Bill Lee on March 2, 2023, criminalizes the performance of “adult cabaret entertainment,” including “male or female impersonators,” in “any location where the adult cabaret entertainment could be viewed by a person who is not an adult.”
Judge Parker’s opinion included a scathing rebuke of the law and a formidable defense of the First Amendment. Here are a few highlights:
After reviewing the facts of the case and the transcript from legislative debates about the bill, Judge Parker finds that “the AEA was passed for an impermissible purpose.” In perhaps one of the most scathing parts of his opinion, Judge Parker points out that legislators did not actually design the law to “protect minors” from the “secondary effects” of drag shows, such as an “increase in sexual exploitation” of children, as the government argued. Instead, the Court concluded that legislators’ actual “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.”
Judge Parker rightly concludes that the law requires strict scrutiny review, the highest standard of review that courts use to evaluate a law’s constitutionality since the law is “a content- and viewpoint-based restriction on speech.” To pass a strict scrutiny test, according to the Middle Tennessee State University First Amendment Encyclopedia, “the government must show that there is a compelling, or very strong, interest in the law, and that the law is either very narrowly tailored or is the least speech restrictive means available to the government.”
Judge Parker agrees that “Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors” but ultimately finds that the law does not pass strict scrutiny review because the state failed to prove “that the AEA is both narrowly tailored and the least restrictive means to advance Tennessee’s interest.” The law, he argues, was “alarmingly overbroad.”
In discussing how the threat of prosecution alone gives Plaintiffs standing in this case, Judge Parker notes that the vagueness of the law’s prohibition on acts that would be harmful to minors
lowers the floor for criminal behavior, equipping law enforcement officers with even more discretion. The chance that an officer could abuse that wide discretion is troubling given an art form like drag that some would say purposefully challenges the limits of society’s accepted norms. And the AEA covers a wide geographical reach: “in a location where adult cabaret entertainment could be viewed by a person who is not an adult [ . . . ] The Court emphasizes that the fear of prosecution from law enforcement officers is not merely speculative but certainly impending.
Judge Parker’s opinion also does an excellent job of explaining why the argument that drag shows are “obscene” for minors fails to pass constitutional muster:
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. Miller v. California provides the standard for determining “obscenity” under the law. 413 U.S. 15, 21 (1973) (setting out a three-prong standard). Legal obscenity is an exceptionally high standard as one of its prongs requires that the speech “not have serious literary, artistic, political, or scientific value.” Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. 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. See Ashcroft v. A.C.L.U.., 535 U.S. 234, 245 (2002) (“It is also well established that speech may not be prohibited because it concerns subjects affecting our sensibilities.”); Reno v. A.C.L.U., 521 U.S. 844, 874 (1997) (reaffirming that the First Amendment protects sexual expression which is indecent but not obscene).
The state argued that the law was constitutionally sound because it pulls the language “male or female impersonators” from a 1987 law that regulated adult-oriented businesses in Shelby County, the “Adult-Oriented Establishment Registration Act” (AERA). But Judge Parker says that this argument fails on several fronts :
First, while including “male or female impersonators,” in a list with “topless dancers, go-go dancers, exotic dancers, strippers . . . or similar entertainers” may have escaped many readers’ scrutiny in 1987, it may not do so with ease in 2023. In 1987, homosexual intercourse was considered sodomy and was a crime in Tennessee, “Don’t Ask Don’t Tell” had not been enacted (much less repealed) for our military, and same-sex couples did not have a recognized fundamental right to marry. The phrase “similar entertainers” seems to refer to dancers traditionally associated with “adult-oriented businesses.” In 1987, associating “male or female impersonators” in that category may have called for little or no concern. This Court views categorizing “male or female impersonators” as “similar entertainers” in “adult-oriented businesses” with skepticism. Regardless of the Tennessee General Assembly’s intentions, the AEA’s text criminalizes performances that are “harmful to minors” by “male or female impersonators,” and the Court must grapple with that text. The Court finds that this phrase discriminates against the viewpoint of gender identity—particularly, those who wish to impersonate a gender that is different from the one with which they are born.
He continues:
Given an appropriate scope, [the government] 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.
Judge Parker also explains how the bill's legislative history undermines the state’s argument that it had narrowly tailored the law. Judge Parker finds that “the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.”
He then notes that the AEA failed to include a “textual scienter requirement.” In other words, the law does not indicate, for example, whether someone who violates the law has to know whether or not minors are present or knowingly perform content that could be harmful to minors. He writes:
Having drawn language from a case analyzing a statute with a textual scienter requirement but not including that provision in the AEA can be evidence that the legislature passed the law to chill constitutionally-protected speech by lowering the requisite mens rea [the intention or knowledge of wrongdoing] in the AEA to criminalize more conduct. [bracketed addition mine]
He also contends that since the AEA criminalizes drag shows on “public property, or [i]n a location where the adult cabaret entertainment could be viewed by a person who is not an adult,” this language essentially criminalizes drag shows “virtually anywhere.”
Judge Parker concludes that “[t]he Tennessee General Assembly enacted the AEA—a statute regulating speech with criminal sanctions—in a way that is purposefully overbroad such that it can chill speech that may be constitutionally-protected.”
A First Amendment Theory for Drag Shows?
Judge Parker’s opening paragraph emphasizes several key theories underlying the importance and necessity of the First Amendment for a free society:
Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society. That freedom is of first importance to many Americans such that the United States Supreme Court has relaxed procedural requirements for citizens to vindicate their right to freedom of speech, while making it harder for the government to regulate it. This case is about one such regulation.
His ruling makes a strong case that Tennessee lawmakers intended to chill speech and specifically target drag shows, a content- and viewpoint-based restriction that fails strict scrutiny review. But the way Judge Parker opens his opinion raises an interesting question: is there a First Amendment theory that would justify drag shows and similar forms of entertainment as a valuable aspect of our right to free expression?
The Marketplace of Ideas: Are Traditional Theories Useful?
As the ruling mentions, one of the most common First Amendment Theories regularly invoked by the Supreme Court is the marketplace of ideas. This theory, derived from John Stuart Mill, contends that individuals can only arrive at truth via an open debate where ideas can be contested, and truths can confront falsehoods. But does this theory have much application to this scenario?
One could argue that the idea under debate is about whether individuals should live by particular gender norms, expressed by performers dressing in clothing traditionally associated with the opposite gender. The law certainly seems targeted at this idea and threatens to chill it from the marketplace.
In a discussion on the value of this theory, scholar Steven Gey notes how Justice Oliver Wendell Holmes -- who supported the marketplace of ideas approach on the grounds that there is no objective or absolute truth -- embraced an “ agnostic” view of the truth, whereby the government should protect free speech simply because the truth cannot be fully known or absolute. Gey argues that because no one can know absolute truth, especially those seeking to wield power, we should be skeptical of anyone claiming to have attained it. Instead, we should prohibit government from banning viewpoints that run counter to dominant orthodoxy and protect free expression by default.
An agnostic approach could mean that government should not target drag shows because it does not and cannot know whether the ideas they represent are valid or valuable. Therefore, to live up to the spirit of the First Amendment, government should refrain from banning such forms of expression.
Still, the marketplace of ideas does not seem like a perfect fit here since there is no exchange of ideas per se. A drag show, after all, is a performance, generally on a stage in front of an audience. Instead, we are dealing with a government regulation over a form of artistic expression in this case.
Unfortunately, First Amendment theorists have devoted little time to analyzing the role and place of artistic expression within the broader context of free speech. In a 1987 article for the Wisconsin Law Review, Sheldon H. Nahmod points out that there has been a lack of discussion in First Amendment Theory about art and artistic expression, commenting on how theorists and the courts have relegated art to “second class status” in the hierarchy of protected speech.
In a 1996 article titled “Art Speech” in the Vanderbilt Law Review, Marci A. Hamilton argues that First Amendment theorists have
been inclined to include art under the category of protected speech, but they have not addressed, much less reconciled, the difficulty of explaining how a first amendment theory valuing speech for its rationally comprehensible ideas can comfortably accommodate the phenomenon of art [ . . . ] Art’s value in the First Amendment’s antityranny scheme is incompetently explained by a system that values speech only for its conceptual content.
She also argues that the Supreme Court has “yet to provide a theory to undergrid the assertion, or to make clear how much protection art ought to receive [ . . . ] the Court tends to protect art only to the extent that it is a vehicle for ideas, especially political ideas.”
Structural Rights Theory
In his book, Free Speech and Its Relation to Self-Government, Alexander Milkejohn argues why free speech is necessary for a democratic, self-governing society. He uses the analogy of a town hall environment wherein individuals can speak and hear all essential ideas so they can make informed decisions in a democracy.
While Milkejohn’s theory is not particularly useful for examing the place of drag shows in a democratic, self-governing society, Steven Gey puts forth a structural rights theory that might be more applicable. Gey contends that “the proper argument for free speech is not only that unfettered speech produces more social goods, including enlightened self-governance, but also that governmental suppression of speech produces more social harms of a sort that are inconsistent with democratic self-governance.”
In other words, just because some speech may provide no social value due to its overwhelming inaccuracy, for instance, it would be more harmful if the government prohibited such speech. Gey also draws upon the Establishment Clause of the First Amendment, which forces the government to remain agnostic on religion, and calls for an “agnosticism mandate” whereby “the government is prohibited by the speech clauses of the First Amendment from using the law to enforce its ideology on those who disagree.”
Under this theory, it doesn’t matter whether and to what extent drag shows create value for our democratic self-governance; it would be worse for government to prohibit them because it would represent an encroachment on rights and either promote or prohibit a particular ideology.
Self-Fulfillment, Human Dignity, and Autonomy
In his 1970 book, The System of Free Expression, Thomas Emerson argues, “freedom of expression is essential as a means of assuring individual self-fulfillment. The proper end of man is the realization of his character and potentialities as a human being.” Building on this theory in his book Human Liberty and Freedom of Speech, C. Edwin Baker concludes that “[s]peech and other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.”
These theories for the value of free expression cut against the commonly cited marketplace of ideas justifications for free speech—that free speech allows for the attainment of truth—or the democratic self-governance theory—that allowing ideas to be heard and discussed facilitates self-government and helps citizens make informed decisions on policy proposals. These theories view speech as a means to an end while the self-fulfillment and human dignity theories view speech as an end in itself that benefits individuals.
Rodney Smolla writes, “[f]ree speech is thus specially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. It is a right definitely, robustly, and irreverently to speak one’s mind just because it is one’s mind.”
This rationale does not mean that one must only be engaged in intellectual pursuits to achieve self-fulfillment; it can and should also apply to artistic expression. In his book Freedom of Expression: A Critical Analysis, Martin Redish argues that speech is not only about the ability to obtain facts. He asserts that “[a]n individual’s ‘mental’ processes cannot be limited to the receipt and digestion of cold, hard theories and facts, for there is also an emotional element that is uniquely human and that can be ‘developed’ by such ‘nonrational’ forms of communication.”
It is clear that participating in a drag show is a form of self-expression that provides individuals with self-fulfillment. It creates value for both the performers and the audience who derive entertainment from it. These shows allow both groups to be who they are, live unfettered, and express their true selves. Prohibiting or chilling such forms of entertainment denies the possibility of self-fulfillment and threatens human dignity.
As Geoffrey R. Stone notes, “laws that substantially prevent the expression of a particular message undermine the self-fulfillment rationale, not because they distort public debate, but because they severely limit the opportunities for self-expression.”
A First Amendment Theory for Artistic Expression?
While art can indeed contain political content or overtones, it sometimes has nothing to do with political discussions or debates. It is often a form of expression in itself. Marci Hamilton contends that this fact is enough to make art worthy of its own place in First Amendment Theory. She contends that
“[e]xplicitly regonizing the First Amendment’s protection of art’s nondiscursive elements would require the Court to break through the rigidity of the marketplace of ideas formulation. Such a move, however, is dictated by the First Amendment’s larger mission against government intrusion into private liberties. [ . . . ] Limiting first amendment protection to idea protection misses the fullness of the First Amendment’s mission against tyranny.”
She continues:
[R]republican democracy is best served by keeping government from meddling with art. Those who advocate governmental regulation and censorship of art for the greater good routinely fail to take into account the importance of the subversive, defamiliarizing value of art to the ongoing project of liberty. A culture rich in a variety of artworks presses back the ever-encroaching reach of governmental ideology. Thus, the Constitution requires that government steer clear of meddling in the art world unless it can prove a compelling interest and no alternative means of regulating the particular issue.
Finally, Hamilton contends that art should be protected “against governmental interference because its flourishing furthers the intangible and unquantifiable value of increasing the people's capacity to resist hegemony.”
In a sense, Hamilton’s theory is a mix between the self-fulfillment and human dignity theories and the structural rights theory but applied to art. Perhaps it can be summed up as follows: a society that allows art to flourish keeps the government at bay through subversive speech, prevents it from enforcing a singular orthodoxy, and thwarts tyranny.
Still, we can find use in her theory in its application to drag shows, which are certainly subversive, risqué, and go against dominant government ideology. Under this theory, drag shows are not only a giant middle finger to the government’s attempts to control society, but they are a pure form of expression that merits First Amendment protection.
Conclusion: Constitutional Challenges to Come
As of March 2023, bills targeting drag performances have been introduced or passed in Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Iowa, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia. There will likely be many challenges to these laws making their way through federal courts over the next few years, especially if courts continue to (rightly) apply strict scrutiny review to vague and overly-broad statutes and recognize efforts to chill this speech.
While we will continue to see very persuasive legal arguments put forth based on precedent and free speech doctrine, this challenge is certainly unique since drag shows are forms of both pure expression and expressive conduct, which each have their own place in First Amendment law. Perhaps the push to ban drag shows might, ironically, have the unintended consequence of generating a whole new theory for how we should think about the First Amendment when it comes to artistic expression, thus strengthening constitutional protections for both drag shows and similar forms of entertainment.
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