US District Judge Thomas L. Parker, who was appointed to the Western District of Tennessee bench by President Donald J. Trump, issued a ruling on June 2 holding that Tennessee’s recently adopted “Adult Entertainment Act” (AEA), which was intended to restrict drag shows, violates the First Amendment. Judge Parker previously issued a temporary restraining order (TRO) in March to stop the law from going into effect before he could rule on the merits of the plaintiff’s constitutional claim. His June 2 ruling came after a two-day hearing on May 22-23.
Governor Bill Lee signed the AEA into law on March 2. It was supposed to take effect on April 1. Friends of Georges, Inc., a non-profit group that presents drag shows to raise money for charitable causes, was scheduled to present a show in mid-April, and was concerned that it risked criminal prosecution, so it moved quickly to seek a TRO. The original TRO was supposed to last just for a few days, but Judge Parker extended it and converted what would normally be a hearing on a preliminary injunction into a hearing on the merits. As part of June 2’s ruling, he denied Shelby County District Attorney General Steven J. Mulroy’s motion to dismiss the case as “moot.”
The lawsuit was originally aimed at Governor Lee and the state attorney general as well as Mulroy, but the court determined that Mulroy was the appropriate defendant because the law was to be enforced by local prosecutors. Much of the court’s opinion is devoted to refuting Mulroy’s arguments that the plaintiffs lacked standing to bring a pre-enforcement challenge.
The statute, surprisingly, never explicitly mentions drag shows. Instead, it adds language to an existing Tennessee law regulating venues for adult entertainment by creating a new category — “adult cabaret entertainment” — which it defines as “adult-oriented performances that are harmful to minors, as that term is defined in Section 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”
The statute makes it a crime for “a person to perform adult cabaret entertainment on public property; or in a location where the adult cabaret entertainment could be viewed by a person who is not an adult.” Unlike prior statutes that focused regulatory enforcement on the business that is providing the show, this statute focuses on the performers, threatening them personally with criminal liability that may result in fines or imprisonment. A first offence is a misdemeanor. A repeat offense is a felony likely to result in prison time.
The definition of “harmful to minors” means “that quality of any description or representation, whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and taken as a whole lacks serious literary, artistic, political or scientific values for minors.” This wording was taken from the U.S. Supreme Court’s 1974 Miller v. California opinion, which set out a uniform definition of obscenity for purposes of the First Amendment. Even though the First Amendment says that “Congress shall make no law abridging the freedom of speech,” the Supreme Court has long held that “obscene speech” is not protected from state prohibition by the First Amendment. (A few stubborn textualists of an earlier generation on the Court rejected that exception, saying that “no law means no law.”)
Under Supreme Court precedents, if a state law can be classified as a content-based regulation of speech, it is subjected to “strict scrutiny” by the court, which means that the law is presumed to be unconstitutional unless the state proves that the law is necessary to achieve a compelling state interest, and that it is “narrowly tailored” to avoid unnecessarily restricting protected speech.
Judge Parker’s key ruling was that the AEA is a content-based regulation of speech subject to strict scrutiny. “The AEA’s regulation of ‘adult-oriented performances that are harmful to minors under section 39-17-901’ does target protected speech, despite Defendant claims to the contrary,” he wrote. “Whether some of us like it or not, the Supreme Court has interpreted the First Amendment as protecting speech that is indecent but not obscene. Because the AEA’s text targets such speech, the Court finds it is a content-based regulation. The AEA draws distinctions based on the message a speaker conveys: adult-oriented performances that are harmful to minors are sanctioned with a criminal penalty while others are not. This fact alone does not make the AEA unconstitutional — but it does make it a content-based regulation that may be possibly subject to strict scrutiny review.”
Strict scrutiny definitely kicks in when a content-based regulation is not viewpoint neutral. The court found that this law is not viewpoint neutral because it targets the individual performers for enforcement. He observed that “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.”
Furthermore, Judge Parker found that the AEA was enacted for an “impermissible purpose.” Focusing on male or female impersonators “is evidence that the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.” Also, the law lacks a “textual scienter requirement” — that is, a requirement that the performer has “knowingly” violated the statute by presenting a performance that is harmful to minors, and it does not provide for any affirmative defenses, such as parental consent for their children to see the performance.
Here, the problem of vagueness entered in as well, because the language of the statute did not restrict its enforcement to adult entertainment venues, but extended to any place where minors could be present, which could be, said the court, “virtually anywhere,” echoing the words of an opponent of the bill during the legislative debate.
“For these reasons,” wrote Parker, “the AEA can criminalize — or at a minimum chill – the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County. Such speech is protected by the First Amendment.” The court quoted excerpts from the legislative history bolstering these conclusions.
While acknowledging that the state always has a compelling interest in protecting children, the court found that this statute was not “narrowly tailored” to achieve that interest, but rather, due to the vague contours of the statutory prohibition, lent itself to overly broad and subjective enforcement. The law induces a “chilling” effect because it is hard for performers to find a bright line demarcating when their performance would be violating the statute. This was certainly the case with Friend of Georges, which was unsure how to proceed with their drag show scheduled to be presented just two weeks after the statute was to go into effect.
Judge Parker viewed video recordings of past drag performances presented by Friends of Georges and saw the ambiguities that would make it unpredictable how law enforcement officers might apply the statutory language to particular performances. The court found that there was a danger of “substantial overbreadth” in applying the vague statutory language, which would deter the plaintiffs from engaging in constitutional protected speech out of a reasonable fear of prosecution.
“The Tennessee General Assembly can certainly use its mandate to pass laws that their communities demand,” wrote Parker, alluding to “scores of concerned Tennesseans” who had “asked the Court to uphold the AEA because their State supposedly enacted it to protect their children…. But that mandate as to speech is limited by the First Amendment to the United States Constitution, which commands that laws infringing on the Freedom of Speech must be narrow and well-defined. The AEA is neither.”
In addition to declaring the law unconstitutional, the court issued an injunction against Attorney General Mulroy’s office enforcing it.
Judge Parker’s decision can be appealed by defendant Mulroy to the US Court of Appeals for the Sixth Circuit.
