Tennessee law banning children from drag shows upheld by appeals court

By Ryan Foley, Christian Post Reporter Monday, July 22, 2024

A federal appellate court upheld a Tennessee law effectively banning children from drag shows, with an LGBT advocacy organization challenging the measure, warning that it threatens to put its case in "limbo."

In an opinion published last week, a three-judge panel on the 6th U.S. Circuit Court of Appeals upheld Tennessee's Adult Entertainment Act. Enacted in 2023, the legislation declares that "it is an offense for a person to perform adult caberet entertainment" at any location where the show could be "viewed by a person who is not an adult."

Examples of "adult caberet entertainment" defined in the legislation include performances featuring "topless dancers, go-go dancers, exotic dancers, male or female impersonators, or similar entertainers."

A federal judge in the U.S. District Court for the Western District of Tennessee put the law on hold before it was slated to take effect last year, describing it as an "unconstitutional restriction on free speech under the First Amendment."

The district court decision only applied to Shelby County, the largest county in the state home to Memphis. The LGBT theatre company Friends of George's, identified in the 6th Circuit opinion as "an organization that 'aims to provide a space outside of bars and clubs where people can enjoy drag shows,'" performs most of its shows in Shelby County and successfully sought an opinion from a federal court preventing the enforcement of the Adult Entertainment Act there.

Last week's decision by the 6th Circuit overturned the lower court's decision. Judge John Nalbandian, appointed to the bench by former President Donald Trump, authored the court's opinion. He was joined by George H.W. Bush-appointed Judge Edward Siler. Judge Andre Mathis, appointed to the bench by President Joe Biden, dissented.

Nalbandian asserted that Friends of George's lacked standing to challenge the Adult Enforcement Act, specifically highlighting how a witness testifying on behalf of the organization stated that its performances "are definitely appropriate" for teenagers and touted its efforts to "stick around the PG-13 area in writing" and avoiding getting "too risque."

According to Nalbandian, "By its own testimony, FOG has failed to show any intention to even arguably violate the AEA."

"FOG nonetheless claims that its productions might be seen as violating the AEA by law enforcement and thus could be proscribed," he added. "A party alleging that its conduct could be proscribed by the challenged statute cannot rely on an argument that the statute might be misconstrued by law enforcement."

Nalbandian concluded "that's essentially what FOG is asking for here," insisting that for several reasons, "FOG cannot show a pre-enforcement injury without alleging an intention to arguably violate the AEA."

"Even if FOG alleged an intention to engage in a course of conduct arguably proscribed by the AEA, it would also need to show that this alleged intention to breach the AEA is 'arguably affected with a constitutional interest,'" the judge wrote, stressing "there is no constitutional interest in exhibiting indecent material to minors."

"But even if we assume for the sake of argument that this supposed threat of false arrest could then amount to a threat of false prosecution, 'fear [of] wrongful prosecution and conviction under the [AEA]' is 'inadequate to generate a case or controversy the federal courts can hear,'" he wrote. "FOG faces no certainly impending threat of prosecution."

In dissent, Mathis called the law an "unconstitutional content-based restriction on speech."

"FOG did not have to wait for [the state] to enforce the AEA before challenging the
constitutionality of the law," Mathis wrote. "Threats of future harm equate to an injury in fact 'as long as there is a ‘substantial risk’ that the harm will occur.'"

In a statement, Republican Attorney General Jonathan Skrmetti said that Tennessee's Adult Entertainment Act has been "consistently misrepresented since its adoption."

"As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression," Skrmetti said. "But as the Court noted, Tennessee's 'harmful to minors' standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children."

Skrmetti stated that the appeals court "focused on what the law actually says and ordered the law reinstated."

Friends of George's released a statement on Facebook to express its disappointment with the 6th Circuit decision.

"Instead of addressing the constitutionality of Tennessee's drag ban, today's ruling has left us and thousands of others in the LGBTQ+ community dangerously in limbo, with no clear answers as to how this ban will be enforced and by whom," the group stated. "The only thing that is clear about this law is that it's firmly rooted in hate and defies the will of the majority of Tennesseans. We are consulting with our attorney on next steps, as we rehearse for our next theatrical production, slated to open on August 2nd."

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com