Federal judge blocks Tennessee officials from enforcing law restricting drag

A Friday evening ruling from a Trump appointee. The law goes into effect on Saturday.

A federal judge blocked Tennessee from enforcing S.B. 3, the “adult cabaret entertainment” law that criminalizes some drag performances, hours before the law was going into effect.

U.S. District Judge Thomas L. Parker issued a temporary restraining order (TRO) that prohibits enforcement of the law by Gov. Bill Lee, Attorney General Jonathan Skrmetti, or the Shelby County district attorney for the next 14 days. Parker notes plans for future hearings in the coming days to schedule the next steps in the case.

In issuing the temporary order, Parker — a 2017 Trump appointee to the bench — wrote:

The United States Constitution—a law that is supreme even to the Tennessee General Assembly’s acts—has placed some issues beyond the reach of the democratic process. First among them is the freedom of speech. If Tennessee wishes to exercise its police power in restricting speech it considers obscene, it must do so within the constraints and framework of the United States Constitution. The Court finds that, as it stands, the record here suggests that when the legislature passed this Statute, it missed the mark.

The lawsuit, filed on March 30, was brought on behalf of Friends of George’s, which the lawsuit describes as “a theatre company that produces drag-centric performances, comedy sketches, and plays.” The TRO request was also filed on March 30.

The bill was signed into law by Lee on March 2, and goes into effect April 1. Law Dork had also covered its consideration in the legislature in February.

Here is Parker’s final language, issuing the TRO:

How did Parker get there? Pretty easily, actually.

“[N]ot only is the Statute vague,” Parker wrote, “but so is the State’s enforcement mechanism for it.” Because of “the risk of chilling speech” due to that vagueness, Parker added that he “will not let the enforcement mechanism’s ambiguity prevent Plaintiff’s suit here.”

Specifically, Parker wrote that he could “think of at least three scenarios in which Plaintiff is likely to succeed on the merits.”

For purposes of the TRO, he wrote, the law is a content-based regulation and the state has failed, thus far, to meet the high standard under First Amendment law — strict scrutiny — for allowing such a strongly disfavored government speech regulation.

Second, Parker also found that, even if it was not a content-based restriction on its face, it should be considered content-based due to its purpose — a section that led Parker to looking at the clear viewpoint-discrimination expressed by the bill’s sponsor. As such, again, strict scrutiny would apply.

Finally, Parker found that the law is “likely both vague and overly-broad.”

Expressing those significant concerns about the constitutionality of the law, Parker wrote that “issuing a TRO here will preserve the status quo and benefit the public interest by clarifying the scope of a law that could impact the First Amendment rights of Tennessee residents.”