Tennessee’s Drag Ban Overturned, Deemed Unconstitutional by Federal Judge

A federal judge on Friday (June 2) ruled that Tennessee’s first-in-the-nation law restricting drag shows violates the First Amendment, sending the closely-watched legal battle to a federal appeals court.

Two months after U.S. District Judge Thomas Parker issued a temporary restraining order against the new law — titled the Adult Entertainment Act (AEA) — because it was likely unconstitutional, the same judge issued a permanent injunction on the same grounds.

The judge wrote that freedom of speech as designed in the First Amendment is “not just about speech,” but also about the right “to express one’s identity, and to realize self-fulfillment in a free society.” Tennessee’s law, he said, infringed upon those rights.

“The Court finds that — despite Tennessee’s compelling interest in protecting the psychological and physical wellbeing of children — the Adult Entertainment Act (“AEA”) is an unconstitutional restriction on the freedom of speech,” Judge Parker wrote.

In a statement released following the news, Friends of George’s — the Memphis-based LGBTQ+ theater company that sued the state of Tennessee — celebrated their victory, while also looking ahead at future battles to come.

“This win represents a triumph over hate. Our first amendment rights were affirmed today as drag artists and makers of theatre,” the organization said in a statement. “While today is a moment worth celebrating as we kick off Pride month, our work is not finished. As the onslaught of hatred against the LGBTQ+ community continues around the country through the passage of anti-trans, homophobic, and draconian laws that seek to silence expression and identity, we will remain vocal and vigilant.”

LGBTQ media advocacy organization GLAAD also celebrated the ruling. President and CEO Sarah Kate Ellis said, “This ruling is a turning point and we will not go back. Every anti-LGBTQ elected official is on notice that these baseless laws will not stand and that our constitutional freedom of speech and expression protects everyone and propels our culture forward.”

Though Friday’s injunction only explicitly prohibits officials in Shelby County from enforcing the AEA, the judge’s rationale would apply to the law in any context and could lead to future state-wide challenges. Tennessee Attorney General Jonathan Skrmetti has already said that he plans to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit.

Signed in March by Gov. Bill Lee, the AEA makes it a felony to perform “adult cabaret entertainment” by “male or female impersonators” in a location that could be viewed by children. Critics say the law, one of many proposed in states across the country, is a thinly-veiled attack on the LGBTQ community.

In their lawsuit, Friends of George’s claimed the new law was designed to target drag shows with “the fear of felony charges and the uncertainty about what could give rise to those charges.”

“This law, which specifically targets drag performances, threatens to return the LGBTQIA community to the days when they had to hide their identity and their art behind blacked-out windows,” the group wrote in their complaint, which named Lee, Skrmetti and Shelby County District Attorney Steve Mulroy as defendants.

On March 31, Judge Parker largely agreed with those arguments. He issued a temporary restraining order preventing the law from going into effect, saying the new law seemed to not only impose improper restrictions on free speech, but also was so vague that it would have a broader “chilling effect” beyond the statute’s actual scope.

In Friday’s ruling, the judge wrote that the AEA was “both unconstitutionally vague and substantially overbroad,” citing the law’s attempt to ban drag performances “anywhere” a minor could be present, not just on public property. The judge added that, “as a matter of text alone, the AEA is a content-, and viewpoint-based restriction on speech … passed for the impermissible purpose of chilling constitutionally-protected speech.”

While they were covered by the temporary restraining order in March, Lee and Skrmetti were later dropped as defendants from the case, meaning they were not explicitly enjoined by Friday’s decision, though the state attorney general continued to represent Mulroy in the litigation.

The ruling sets the stage for an appeal to the Sixth Circuit, where officials can seek to overturn Judge Parker’s decision. However that court rules, either side could then take the case to the U.S. Supreme Court.

Read the entire ruling here:

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