Tennessee’s short-lived ban on drag shows finally met its end in federal court on Friday at the hands of a judge who ruled it unconstitutional while explicitly recognizing the right of Tennessee voters to protect children from sexually explicit materials. The question that remains is why legislators so often pass unconstitutional messaging bills that are doomed to die in court.
Tennessee’s Adult Entertainment Act (AEA) banned “adult cabaret performances” on public property or in locations where the performance “could be viewed by a person who is not an adult.” The law not only outlawed male or female impersonators, but also “exotic” dancers.
As Protect The 1st pointed out, AEA could conceivably outlaw performances of Shakespeare’s As You Like It, or outdoor showings of Mrs. Doubtfire or Tootsie, or even dancing ladies announcing the circus is coming. The state’s attorney referred to a Tennessee Supreme Court ruling that “harmful to minors” would only include “materials which lack serious literary, artistic, political or scientific value for a reasonable 17-year-old.” In other words, leave it to endless litigation to determine what is literature, art, science, or political discourse, not to mention the rare species of reasonable 17-year-olds.
U.S. District Court Judge Thomas L. Parker saw the vacuity of this law. He agreed with the plaintiffs, a Memphis-based theater group threatened with the felony of producing drag shows, that the law’s “harmful to minors standard” is “unconstitutionally vague and substantially overbroad.”
In the opening of his brief, Judge Parker gave a ringing description of the First Amendment. He wrote:
“Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.”
In the conclusion of his 70-page opinion, Judge Parker wrote:
“Let there be no mistake about this Court’s recognition that Tennessee has a compelling government interest in protecting its minor population. Scores of concerned Tennesseans asked the Court to uphold the Adult Entertainment Act because their State supposedly enacted it to protect their children. Tennesseans deserve to know that their State’s defense of the AEA primarily involved a request for the Court to alter the AEA by changing the meaning of ‘minors’ to a ‘reasonable 17-year-old minor.’ In other words, while its citizens believed this powerful law would protect all children, the State’s lawyers told the Court this law will only protect 17-year-olds. This is only one of several ways in which Tennessee asked this Court to rewrite the AEA.
“To rewrite this law would not only violate the separation-of-powers principle, but it would also offer perverse incentives for legislators to continue their troubling trend of abdicating their responsibilities in exercising ‘considered legislative judgment.’”
The short journey of this law from passage to being overturned is a visible result of a national trend: Namely, voters are sending declining numbers of candidates with law degrees to state legislatures. Perhaps if more legislators were lawyers, they would craft bills that respect the First Amendment and the Constitution.