The Tennessee law says an "adult cabaret performance" is unlawful if it happens on public property or in a location where the performance "could be viewed by a person who is not an adult." It defines such a performance as one that is harmful to minors and includes topless dancers, "exotic" dancers, strippers and male or female impersonators, The Hill reported.
U.S. District Judge Thomas Parker, appointed under former President Donald Trump, had issued a preliminary injunction at the end of March to block the law from taking effect. He agreed with Friends of George's, a Memphis-based theater group that produces drag performances, comedy sketches and plays, that the state's Adult Entertainment Act (AEA) could apply "just about anywhere."
Friends of George's argued the law would violate its free speech and put its members at risk of felony charges over the shows that it has held for years – and that the law is overly broad because it applies to minors of all ages and anywhere that a minor could be.
For instance, a female performing as an Elvis impersonator could be in violation of the law.
"I think there are better ways to attack this problem," Ron Coleman, a partner and free speech specialist with The Dhillon Law Group, said on American Family Radio Monday.
"There are a lot of approaches that would be more effective. Judge Parker didn't really have much choice. I don't think there's any way to uphold a law like this, given where we are."
Interpretation of 1st Amendment isn't like it used to be
It took only three years for the U.S. Constitution, which became official after it was ratified by the ninth state, New Hampshire, to receive its first amendment. The First Amendment guarantees freedoms concern religion, expression, assembly and the right to petition.
But like so many things in society, interpretation of the First Amendment has seen change. Free-speech cases have wound their way to the Supreme Court for decades, and protected expression looks different than the Founding Fathers intended.
"Speech has been interpreted to extend to conduct such as nude dancing. Now it is rather preposterous to suggest that when the First Amendment was adopted that anyone understood that nude dancing or any kind of dancing was a form of free speech, but there's no going back," Coleman told show host Jenna Ellis. "So, drag shows are [now deemed] a form of artistic expression or … an artistic expression that is not obscene."
While offensive speech and hate speech can be protected, sexually explicit drag shows presently performed before children can be harmful for still-developing young people who by law can't buy liquor or vote until much later in life.
"Today's drag shows are disgusting expressions of sexuality, and children have no business being anywhere near them," Coleman emphasized.
Legislatures are trying to figure this out because many children are victims of failure by their first line of defense – their parents. The Tennessee ruling, Coleman argued, makes it clear that future efforts by lawmakers in any state must be narrower in scope.
"[In addressing] this problem, I would actually focus on the extent to which parents should be permitted or prohibited from bringing or allowing their children to attend sexually explicit programming," Coleman said.
"We have a societal problem which may or may not be amenable to a legal solution, which is that every time you see a video on Twitter of one or more children enjoying a so-called 'family-friendly,' crotch-grinding drag show, [we wonder] What are parents doing taking their children to this? That's a gigantic problem."
But the problem, according to the attorney, isn't only with parents.
Leave it to the schools? Certainly not …
If the courts decide it's necessary to remove a child from parents, other decision-makers will step into that void. If that means greater influence from public schools, that's a situation already proven problematic in many areas. For example, a Florida family right now is suing a local school district for encouraging their daughter to transition to identify as a male without informing them.
"We don't want to offend the concept of parents' rights because if you would leave it up to the National Education Association and its affiliates in many states, they take the position that public school teachers are actually the appropriate decision-makers when it comes to what's right and what a child should be exposed to in school," Coleman explained.
According to the attorney, the church could assist in this role – but he points out many parents who would take their children to drag shows aren't likely parents who would take their children to church.
Coleman contends this issue will be determined in the courts largely because of the Supreme Court's inaction on the issue for decades.
"The Supreme Court, as an institution, over the last 75 years bore some responsibility for abdicating the position that the law should properly reflect moral values," he stated. "The definition of obscenity has been whittled away to so little – [and] the Court threw up its hands and abdicated its position as a line-drawer and said, 'We'll know it when we see it, and hardly ever see it.'
"Now, 75 years later, we live in a world where parents, unfortunately, to a great extent don't know it when they see it – and they are ruining an entire generation of children."
