Drag Bans Won’t Survive Constitutional Scrutiny | Opinion

Photo via Pixabay.
Photo via Pixabay.

A federal judge has blocked enforcement of Florida’s drag ban as overly broad under the First Amendment. Issuing an injunction to bar enforcement of the suspect law, the judge found the ban unconstitutionally vague and “dangerously susceptible to standardless, over broad enforcement which could sweep up substantial protected speech…”   

Hamburger Mary’s sued state officials to challenge Florida’s SB 1438. The intentionally misnamed “Protection of Children Act” was designed to chill and intimidate gay and gay-friendly businesses under threat of fines, loss of operating licenses, and criminal penalties if their shows expose a “child” to “lewd” performances. Lewd, of course, means whatever DeSantis says it means, in this case a performance that depicts or simulates sexual “conduct,” which could mean almost anything. 

The judge noted that Florida’s justification that the law was enacted to “protect children” “rings hollow when accompanied by the knowledge that Florida state law, presently and independently of the instant statutory scheme, permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian. Such R-Rated films routinely convey content at least as objectionable” as drag shows. 

Trump Appointed Judge Delivers a Primer on the First Amendment 

Florida’s drag ban is similar to Tennessee’s, another state statute struck down this month due to overbreadth. Three weeks ago, a Trump-appointed judge struck down Tennessee’s ban under the First Amendment, in a call that wasn’t even close. 

Tennessee’s law criminally sanctioned drag performance any place where minors “might” see it, which would include gay pride parades, drag brunches, wedding parties, music festivals, restaurants, private parties, and any place outdoors; it would also include night clubs with glass windows kids might be able to see through. The ban reached into the private homes of Tennessee citizens, and determined on behalf of all parents what is and is not appropriate for their children to see. To make sure their tastes prevailed in cities like Memphis and Nashville where their politics do not,  Tennessee legislators pre-empted/ invalidated any municipal ordinances to the contrary.   

Thanks to Tennessee, we’re all benefitting from Judge Thomas Parker’s primer on the First Amendment.  Parker ruled that Tennessee’s drag ban, barely two pages long, “reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights.” 

He began by reminding us, “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.” Speech protected under the 1st Amendment isn’t limited to words.  Constitutionally protected speech includes “expressive conduct” including sexual expression some might enjoy, some might find funny, and some might find indecent.  

Government Can’t Outlaw Speech Just Because it Doesn’t Like the Message 

Judge Parker cited straightforward SCOTUS decisions for the premise that any statute seeking to ban content of expression - because the government disagrees with the message the speech conveys - must satisfy a strict scrutiny analysis and be narrowly tailored to achieve the state’s objective. Any content-based regulation is presumptively unconstitutional, because “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”  

Tennessee argued that drag shows are “inherently” obscene, and therefore not shielded by the First Amendment. But to be considered legally obscene, expression can have no appreciable “literary, artistic, political, or scientific value.” Had my own vodka-infused drag experiences been admitted at trial, I could have attested that most impersonators consider their performances a political statement - the more cliche the better - and all of them think they are artful.   

While states possess legitimate power to protect children from harm, “that does not include a free-floating power to restrict the ideas to which children may be exposed.”  That power falls to parents, not state legislators. The legislative record also suggested Tennessee legislators were mainly concerned with the suppression of unpopular views (impersonating a different gender), not protecting children, as there was no evidence that a drag performance had ever harmed any child.   

Why are Republicans so Afraid of an Ancient Art? 

Drag has been around for thousands of years. In Ancient Greece men performed all female roles on stage. In Japanese Kabuki, both genders were performed by women until 1629, when it switched to all men. Shakespeare’s first Lady Macbeth, Cleopatra, and Juliet? All men.   

The word “drag” comes from Victorian times, when men performing female roles drug intentionally long skirts across the stage floor. In the 19th century, female impersonators ruled Vaudeville. Today RuPaul hosts one of the most successful reality shows on TV, a drag competition of high hair and heavy eyeliner now in its fifteenth season.   

Despite the antiquity and ubiquity of drag performance, today’s conservatives claim it grooms, recruits, and sexualizes children. I don’t know what drag shows they’ve been to, but they clearly find them sexually titillating. Drag to most is more comedic than sexual; “camp” in gayspeak means funny irreverence – not hot. Even the Victorians got it.  

Maybe state legislators who would outlaw drag have “unique” sexual proclivities, but even if they do find drag queens sexy, it’s a far and fanciful leap from sexy to pedophile.   

It seems to me that if legislators really wanted to protect children, they’d regulate guns and address climate change while we still have potable water. Attacking drag queens and textbooks that depict two mommies, without evidence that any child has ever been harmed by them, is pure deflection from politicians hamstrung into inaction by their NRA and fossil fuel donors.   

Demagoguery masquerading as governance is nothing new, but it is gratifying to see the 1st A stand-up to right-wing zealots like DeSantis. 


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