Appeals Court Tosses Lawsuit Brought Against Tennessee’s Anti-Drag Show Law

In 2023, Tennessee enacted a new law — one that rewrote part of its existing adult entertainment statutes for the sole purpose of making it easier to prosecute drag performers. Sure, legislators took care to talk around the issue when debating it on the floor, but the bill’s language added “male or female impersonators” to the state’s definition of “adult cabaret” performers, instantly equating them with strippers, topless dancers, and other adult entertainers.

The law never went into effect, though. It was immediately challenged by Friends of George’s, a venue dedicated to drag performances. In June 2023, it obtained a permanent injunction blocking the law from being enforced, with the federal court concluding the hasty rewrite of the existing adult cabaret law sought targeted a specific form of entertainment unlawfully.

This District Court does not find that the Tennessee General Assembly’s predominate concerns were “increase in sexual exploitation.” Rather, the Court finds that their predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born. Defendant’s identification of “increase in sexual exploitation” as the legislature’s predominate concern in passing the AEA draws not from legislators, but from Ms. Starbuck’s testimony. (“It’s no wonder we have skyrocketing mental health crisis amongst our confused and vulnerable youth with more sexual exploitation crimes reported than ever before.”). The only other time “sexual exploitation” was mentioned in the legislative transcript was in Ms. Starbuck’s testimony. (“[Children] are seeing adults clap every time an article of clothing is removed, the adults are thunderously clapping. And so they are making associations that when you take your clothes off, you’re rewarded money . . . But continuing that behavior is sending that message to children and it[’]s normalizing that sexual exploitation.”) On the other hand, the record is replete with references to the expressive conduct of “male or female impersonators,” “drag shows,” “Pride” events, and more. The Court’s determination that the AEA was enacted for an impermissible purpose is broad enough to reject the notion that the AEA is aimed not at the content of expressive speech but rather at its secondary effects.

This injunction was immediately violated by the state, which tried to use it to go after other drag performers and performances. This earned District Attorney Ryan Desmond and a handful of Greer County law enforcement officials a benchslap from the federal court reminding them that an injunction means no enforcement anywhere, not just against the plaintiffs of the lawsuit.

The state appealed and, unfortunately, the Sixth Circuit Appeals Court has proclaimed Friends of George’s (FOG) has no standing to pursue a challenge of this anti-LGBTQ+ law.

The opinion [PDF] is quite the read. To find out everything wrong with the majority ruling, one only needs to head to the dissent, which points out the numerous ways the rest of the court got this wrong.

The majority says Friends of George’s has no reason to believe the law will be used to prosecute it or its performers by pointing to none other than FOG’s own presentations covering the content of its drag performances. As the majority sees it, the venue has no intention of violating the Adult Entertainment Act (the anti-drag law attached to existing adult entertainment regulations). Therefore, it should fear no reprisal. And if there’s no potential for reprisal, there’s no lawsuit.

But that misses the point. This rewriting of the law allows the state to criminally prosecute performers and venue owners. And, by attaching it to statutory regulations that don’t normally involve criminal prosecutions, legislators have created a way to bypass its obligations to prove defendants intended to violate the law.

The dissent from Judge Mathis points out that the law’s wording and crafting make it possible for the law to be wielded against Friends of George’s, whether or not its performances or performers intend to violate the law. It gives the state and its law enforcement a pair of loaded dice to work with — something the majority apparently believes presents no future harm to venues or performers.

For one, the AEA is a strict-liability crime. Criminal offenses housed in Tennessee’s Criminal Code require “[a] culpable mental state . . . unless the definition of an offense plainly dispenses with a mental element.” Tenn. Code Ann. § 39-11-301(b). “[I]ntent, knowledge or recklessness suffices to establish the culpable mental state.” Id. § 39-11-301(c). But the AEA lacks a scienter requirement because it is not in the Criminal Code. The Tennessee legislature placed the AEA in the part of the Tennessee Code that regulates adult-oriented businesses. “[P]ublic welfare or regulatory offenses which allow for a form of strict criminal liability through statutes . . . do not require the defendant to know the facts that make his conduct illegal.” State v. Terry, No. E2021-00406, 2022 WL 1288587, at *11 (Tenn. Crim. App. Apr. 29, 2022) Thus, to establish a violation of the AEA, a prosecutor would not have to prove that a defendant acted with a culpable mental state.

Second, the AEA’s broadness makes it easier to enforce. Mulroy can prosecute a violation of the law for conduct that occurs at any location that “could be viewed by a person who is not an adult.” Tenn. Code Ann. § 7-51-1407(c)(1)(B). This includes the Evergreen Theater where FOG performs—the trial evidence showed that minors have been admitted to FOG’s shows. And, as Mulroy conceded at oral argument, it also includes the home where minors live or have access. Keep in mind, the AEA applies to, among others, male and female impersonators. Id. § 7-51 1401(3), (7). Males can impersonate females. But males can also impersonate other males. And females can impersonate males and females.

Furthermore, the law allows law enforcement to decide what is “harmful to minors,” giving it vast amounts of discretion. The “I know it when I see it” standard is no standard at all, Judge Mathis points out. Finally, Shelby County District Attorney General Steven Mulroy has made it clear he intends to enforce the law, which means he’s the proper target for FOG’s lawsuit. All of this adds up to the standing the majority claims the venue doesn’t possess.

The dissent then draws attention to AG Mulroy’s own statements and assertions in defense of the law. At least one defense of the law is a new argument — the sort of thing that isn’t supposed to be considered by appellate courts when handling an appeal. If you didn’t make the argument at the lower level, you can’t introduce it during your appeal of that ruling.

Furthermore, the legislative history of the law’s crafting and passage makes it clear the AEA only seeks to punish certain forms of speech. AG Mulroy’s “for the children” arguments in court are undercut by some pretty inconvenient facts.

Contrary to Mulroy’s assertions, the legislative record does not reflect that sexual-exploitation crimes against children were a “predominate concern” of the Tennessee legislature. The statutory text does not mention, or create an inference, that sexual-exploitation crimes were the main concern of the legislature in passing the AEA. The legislative history bolsters this conclusion. Only one person mentioned a concern related to sexual exploitation: Ms. Starbuck, who testified as a witness at a committee hearing. The legislators did not discuss sexual exploitation or sexual assaults at all. Supporters of the AEA bill instead focused on the expressive content. And neither the text of the AEA nor the legislative record makes a connection between the conduct the AEA seeks to regulate and the risk of sexual exploitation.

In sum, the AEA is a content-based restriction on speech. It is not a time, place, or manner restriction.

And that’s what it always has been. The real goal of the law — which legislators attempted to talk around by pretending it was about something else — was to punish certain people who engaged in certain forms of speech. If Friends of George’s was violating existing adult entertainment statutes, the state always had the option to enforce those laws. But because it wasn’t, legislators decided to treat male and female impersonators as de facto adult entertainers, whether or not they created and performed “adult” content.

The bigots get a win here. This lawsuit will be dismissed upon its return to the lower court. But that law still remains unconstitutional and whether it’s Friends of George’s mounting a second attack on it or another venue in the state raising a challenge, it will eventually be hit with another permanent injunction. Hopefully, the next one will be a bit more permanent than this one was.