Appeals court considers Tennessee criminal law that targets some drag performances

A district court, after trial, found the law to be unconstitutional last year.

On Thursday morning, a lawyer from the Tennessee Attorney General’s Office defended the state’s law targeting certain drag performances with criminal penalties, telling three judges of the U.S. Court of Appeals for the Sixth Circuit that the law could be constitutionally applied to prosecute performances that take place in a private home.

Although Tennessee Associate Solicitor General Matt Rice quickly moved on to argue that the challengers didn’t show that there are a “substantial number of applications of this law that are occurring in the home,” Rice did make clear that the state is not limiting its potential application of the law to businesses should it be allowed to enforce it.

On Thursday, though, two debates were key to the 35-minute oral arguments — and they go to show quite clearly how the ambiguity in these sorts of laws can be used as a shield when the laws are challenged even if that same ambiguity could be used as a sword in a prosecution (or even arrest).

The first debate was whether the group that brought the challenge — Friends of George’s (FOG), a performance group that produces “drag-centric performances, comedy sketches, and plays” and fears prosecution under the law — has legal standing to bring the lawsuit.

The second was whether the state’s sought reading of the law, on multiple points, was just interpreting the language in the law or seeking a so-called “narrowing construction” that the court would need to adopt to save the law from being struck down — and whether even those narrowing constructions would be sufficient to make the law constitutional.

Together, it becomes a contradictory set of arguments for Tennessee because the state is arguing that the performance group lacks standing because what the group wants to do wouldn’t violate the law — while also arguing that upholding the law means the law needs to be read more narrowly than would seem natural, on several points.

The answer to this was summed up by Melissa Stewart, one of the lawyers for Friends of George’s, who told the judges Thursday, “The state has repeatedly asked this court to rewrite this statute to make it conform with constitutional requirements. This court should decline to do so.”

At the end of the 30-minute oral arguments, however, the outcome was not certain — even though the challengers should ultimately prevail both on standing and the merits of their argument against the vague, intrusive, overbroad law.

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The Adult Entertainment Act, passed as S.B. 3 last year, criminalizes “adult cabaret entertainment” performances anywhere “where the adult cabaret entertainment could be viewed by a person who is not an adult.” The law goes on to define “adult cabaret entertainment” in a way that creates new restrictions on drag by including “male or female impersonators” in a list of affected entertainers alongside “topless dancers, go-go dancers, exotic dancers, [and] strippers.”

The law was found to be unconstitutional by U.S. District Judge Thomas Parker, a Trump appointee, in June 2023 after a two-day trial. The First Amendment, he wrote in the Friends of George’s lawsuit, “commands that laws infringing on the Freedom of Speech must be narrow and well-defined. The AEA is neither.” Parker also concluded that the law was passed with an “impermissible purpose” — “chilling constitutionally-protected speech.”

Later, another federal judge elsewhere in the state pointed to the ruling as “well-written, scrupulously researched, and highly persuasive“ and one that he was “likely to adopt” in litigation in his court when a prosecutor threatened to enforce the law against a pride event in Blount County.

Despite the two rulings, the state continued to press its appeal of Parker’s ruling, arguing that Friends of George’s lacks standing to challenge the law and that, in any event, the law is neither unconstitutionally vague nor unconstitutionally overbroad.

“A long line of cases has upheld statutes that require adult-only zones for content that is obscene as to minors, but not adults. Nothing about this case calls for a different result or supports the drastic remedy of facial invalidation,” the state argued in its brief. “The text of the statute—not an unsupported narrative attached to it—should guide this Court’s inquiry, and that text comports with the Constitution.”

Both Friends of George’s and Blount Pride had responded to the arguments made by the state. Friends of George’s argued that the state would require the court to adopt three unjustified narrowing constructions: limiting the definition of “harmful to minors” in the law, effectively changing the provision in the law barring performances wherever they “could be viewed by a person who is not an adult,” and asking for a scienter requirement — the element of a criminal statute requiring the state to prove the defendant had a certain mental state, usually knowledge or intent — to be read into the law despite the legislature not having including one.

Even if the state’s sought constructions were to be adopted, the Friends of George’s lawyers continued, “FOG would still have standing and the AEA would still be unconstitutional.”

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Thursday’s arguments from Rice, defending the law, and Brice Timmons and Stewart, on behalf of the challengers, contained few fireworks — with the main dispute between the lawyers being over whether videos of sketches from Friends of George’s drag shows were entered into evidence or whether the entire shows were entered and which should be considered when deciding whether Friends of George’s could be found to potentially violate the law such that the group has standing to challenge the law.

Again, though, even this was another shield-sword mirror moment. Setting aside FOG for a minute, consider this: The state was arguing that a drag show host who fears criminal prosecution under the law for allowing a bawdy drag performance that is part of a larger drag show should be found to lack standing to challenge the law because of a possibility that the full drag show, with all of the performances considered together, would not be seen to violate the law.

If that’s possibly right, is it more likely that a drag show is likely to include a constitutionally protected act within the show that could nonetheless individually violate Tennessee’s law because the show’s organizer feels safe that they won’t face prosecution due to the full show’s content, or will they cut the act?

Judge Andre Mathis, a Biden appointee, made clear his concern with the breadth — ahem, overbreadth — of the law throughout the arguments, starting with having been the judge to press Rice early in the arguments on the potential application of the law to performances in a private home.

Later, addressing the state’s argument that it is not banning content but rather simply creating an “adult-only zone” for the covered performances, Mathis asked, “Where is this adult-only zone? If I’m looking on a map?”

Of course, under the law’s plain language, the “adult-only zone” is anywhere a child could be — or could see into. The state seeks to change the law, urging the court to read the “could be viewed by a person who is not an adult” language as “could permissively be viewed by a person who is not an adult.”

Judge John Nalbandian, a Trump appointee, seemed the most supportive of the law, repeatedly questioning the lawyers for the challengers on ways in which he claimed that the Tennessee law isn’t different from many laws that courts have upheld regulating “sexually oriented businesses.”

Although Timmons, addressing standing, and later Stewart, addressing the merits, pushed back in their answers to Nalbandian’s questions, it was not clear whether that would matter or be enough for the conservative judge.

It should be noted, however, that even Nalbandian questioned Rice as to where Tennessee found support in Supreme Court precedent for its “adult-only zones” argument.

In a smart pick-up during her argument, Stewart later highlighted that the only Supreme Court support for such language came from former Justice Sandra Day O’Connor’s partial dissent in a 1997 case — not the majority opinion.

In fact, that majority opinion — by former Justice John Paul Stevens — in Reno v. ACLU summed up (some of) the constitutional problems with Tennessee’s law quite clearly:

In order to deny minors access to potentially harmful speech, the [law] effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

As Stewart argued Thursday, Friends of George’s presented “at least three ways this law could have been more narrowly drawn.”

While the Trump and Biden appointees on the panel asked most of the questions, Judge Eugene Siler Jr., a George H.W. Bush appointee, essentially asked only one question — the same, very basic question — of both sides: What they wanted the court to do with the case.

Tennessee wants the lower court decision reversed and the judgment vacated so it can enforce the law, and the challengers want Parker’s ruling affirmed so that it cannot.

There is no set timeline for when the court needs to issue its decision.

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Garfield and Guiteau

Well!

Having been obsessed with presidents, and specifically those who died in office, growing up; having done a long investigation into the history behind the Twenty-Fifth Amendment, including how the last days of President James Garfield played into it; and being a Stephen Sondheim musical theater gay, I will be seated.