Tennessee Drag Show Ban Revived as State Prevails on Appeal

A Tennessee law restricting public drag performances that was previously deemed unconstitutional was revived Thursday over lack of standing.

Friends of George’s Inc. lacked Article III standing when it alleged Shelby County District Attorney Steven J. Mulroy violated the First Amendment when he threatened enforcement of the law, the majority wrote in an opinion for the US Court of Appeals for the Sixth Circuit. The majority remanded the suit to district court and instructed the lower court to dismiss it.

Judge John B. Nalbandian said the nonprofit failed to show that the state’s Adult Entertainment Act would target the types of performances it puts on.

Friends of George can’t “show a pre-enforcement injury without alleging an intention to arguably violate the AEA,” Nalbandian said.

The organization puts on drag shows as an “art form,” which it likens to Shakespeare plays, and sells tickets to
its shows without distinguishing between adults or minors, the opinion said. While FOG says that its shows are “PG-13" and would be appropriate for a 15-year-old, it argued that law enforcement may contend it is violating the AEA.

But Nalbandian pointed out that FOG has never faced allegations of violating the state’s obscenity laws, which have previously existed to protect minors from sexually explicit shows. The nonprofit can’t challenge a statute it could theoretically be targeted with by alleging the law may be misconstrued by law enforcement, the majority opinion said.

The law, which was first passed in March 2023, restricts “adult cabaret performances,” including “male or female impersonators who provide entertainment that appeals to a prurient interest.” Two days before going into effect, a district judge ruled that it was both unconstitutionally vague and substantially overbroad.

Judge Eugene E. Siler Jr. joined the majority.

Judge Andre B. Mathis disagreed with the majority, ruling that FOG indeed has standing and didn’t have to wait on Mulroy to enact the law before challenging it, he wrote in his dissenting opinion. Threats of future harm equate to an injury-in-fact and the nonprofit sufficiently pled that it was conducting a constitutionally protected activity and faced a certain threat of prosecution for the activity.

“This court’s precedent does not require more,” to establish FOG’s theory of harm, Mathis said.

The AEA amounts to content-based speech restriction and can’t survive strict scrutiny, Mathis wrote. The new legislation has already caused FOG to “chill” its speech by having to alter their performance content and spend more money on security.

Mathis also said that the AEA isn’t narrowly tailored because it lacks affirmative defenses. Some defenses include parental consent, are commonly found in statutes seeking to protect minors from indecent sexual materials. In order to comply with the First Amendment, the law would have to be rewritten to include a scienter requirement, create affirmative defenses, and limit the statute’s reach to private, age-restricted venues.

Donati Law PLLC represents FOG. The Office of the Tennessee Attorney General represents Mulroy.

The case is Friends of George’s Inc. v. Mulroy, 6th Cir., 23-05611, 7/18/24.