“Drag performances consist of music, dance and theater, all of which have long been considered expression under the First Amendment.” That statement was made some two-plus decades ago by First Amendment lawyer and author Marjorie Heins in her book “Not in Front of the Children: ‘Indecency,’ Censorship and the Innocence of Youth.”
What seemed obvious to Ms. Heins then has today become a subject of considerable controversy. The tenor of the times has made attacks on drag performances a cause célèbre in conservative circles.
To get some sense of how widespread the trend of attacks on drag performances has become, consider Kathleen Carlson’s observation: “Beginning in 2022, legislators in at least 10 states introduced bills to restrict, in a host of ways, entertainment and performances by female (and male) impersonators . . . ”
And as Greg Gonzales has pointed out for FIRE, in 2023 alone “lawmakers in several states, including Arizona, Arkansas, Missouri, Montana, Nebraska, North Dakota, South Carolina, South Dakota, Oklahoma, Tennessee (enacted), Texas, and West Virginia introduced legislation that, if enacted, would impose restrictions on expression taking the form of drag performances.”
And according to PEN America, “This introduction of anti-drag legislation dovetails with a rise in political rhetoric about drag performances and drag queen story hours in public libraries in numerous states, and a growing number of recent protests at drag events, some of which have turned violent.”
Several recent examples
In a recent letter to the South Dakota Board of Regents, South Dakota Governor Kristi Noem wrote: “[T]he Board of Regents should prohibit drag shows from taking place on university campuses. Gender theories can and should be debated in college classrooms, but these divisive theories shouldn't be celebrated through public performances on taxpayer-owned property at taxpayer-funded schools.”
Last March, West Texas A&M University President Walter Wendler canceled a student group’s charity drag show fundraising for LGBTQ+ suicide prevention. He did so because of his personal religious beliefs and because he believes drag shows are “derisive, divisive and demoralizing misogyny.” FIRE challenged (JT Morris, lead counsel) the cancellation in an action filed in the U.S. District Court in the Northern District of Texas, where the matter is pending.
Such censorial actions and calls to action by public officials and others come as more and more lawmakers target expressive conduct by drag performers, sometimes under obscenity and harmful to minors rationales. One such law in Tennessee restricting drag shows was recently declared unconstitutional. As reported by CBS News:
The first-in-the-nation law is both “unconstitutionally vague and substantially overbroad” and encouraged “discriminatory enforcement,” according to the ruling . . . by U.S. District Judge Thomas Parker, who was appointed by former President Donald Trump.
“There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” Parker said.
“Simply put, no majority of the Supreme Court has held that sexually explicit — but not obscene — speech receives less protection than political, artistic, or scientific speech,” he said.
- Friends of Georges, Inc. v. Mulroy (U.S. District Court for the Western District of Tennessee, June 2, 2023)
Focus of anti-drag performance bills
According to a study by PEN America:
The focus of [such] anti-drag bills varies from state to state, but share some common provisions:
- Most define a drag performer as someone performing while using dress, makeup, and mannerisms associated with a gender other than the one assigned to them at birth. Nine include lip-synching within their definitions, and most specify that the person must be performing for an audience.
- Ten of these bills seek to expand the definition of adult or sexually oriented businesses to include any establishment that hosts drag performances, which would make it illegal for such business to be located within a certain distance of public schools or residential areas. In Texas, at least four different bills would put venues that host drag performances in the same category as adult movie theaters and strip clubs.
- Six of these bills also explicitly ban minors from viewing or participating in drag performances: A South Carolina bill would make it a felony to allow a minor to view a drag performance, and a Nebraska bill would make it illegal to attend a performance until the age of 19. Other bills would implicitly ban minors by reclassifying drag shows as adult or sexually oriented.
- Four bills explicitly ban drag performances at schools or public libraries. A drafted Montana bill would introduce a $5,000 fine to any school, library, or employee of a school or library who is found to be in violation of the law, and in Arizona, it would be illegal to hold a drag performance within a quarter mile of a school or public playground.
First Amendment concerns
FIRE’s Greg Gonzales also noted:
Many bills regulating drag performances unconstitutionally burden, prohibit, or criminalize protected expression. Of particular concern to FIRE are two key ways that some of these bills unconstitutionally restrict expression.
First are instances in which a bill’s language seeks to regulate all drag performances and to place regulations or prohibitions on such performances, regardless of whether the expression is even sexual in nature. In these iterations of drag bills, some of which have been amended afterwards, the definition of “drag performance” or “drag show” is so broad that it sweeps in performances of Shakespeare, comedy sketches, and other entertainment simply for depicting gender non-conforming characters or characters who are played by actors of the opposite sex.
Second is when proposed laws regulate drag performances that have sexual elements, but do so in a way that regulates gender non-conforming performances differently than gender conforming performances with similar sexual elements. For instance, some bills only require drag shows to appeal to a “prurient interest” before they may be regulated, but gender conforming performances would only be regulated if they include other elements, such as nudity. Prohibiting or adding additional regulations on a performance because the performance is gender non-conforming constitutes unlawful viewpoint discrimination. If those bills targeted instead all performances that “appeal to a prurient interest,” meaning an inordinate interest in sex, regardless of gender conformity, they would still have constitutional hurdles to clear, but they might not violate the First Amendment by engaging in viewpoint-based discrimination.
Among some of the more extreme measures is that of a Utah city and its ban on drag performances (and advertisements about them) in public parks (see story below).
Utah federal judge rules drag shows permitted in public park
- “A Utah city violated the First Amendment in denying a drag show permit, judge rules,” Associated Press (June 17)
The city of St. George must issue a permit for a Utah-based group that organizes drag performances to host an all-ages drag show in a public park, a federal judge ruled [in a 56-page opinion], calling the city’s attempt to stop the show unconstitutional discrimination.
“Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces,” U.S. District Judge David Nuffer wrote in a Friday ruling granting the preliminary injunction requested by the group. “The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.”
Southern Utah Drag Stars and its CEO, Mitski Avalōx, sued the city of St. George in May after the city denied the group permits for an all-ages show it aimed to host in a public park in April. A complaint filed in federal court accused city officials of “flagrant and ongoing violations of their free speech, due process, and equal protection rights,” and asked for St. George to reverse its decision and authorize a drag show at the end of June.
The city also attempted to ban advertising of the drag show performance: This, too, was struck down as violative of the First Amendment.
The following is excerpted from Judge Nuffer’s opinion:
The Advertising Prohibition and Moratorium are overbroad. They have blanket effects, though for limited periods of time, with very little protection of vaguely articulated and unproven City interests and are thus impermissible. The policies underlying the Advertising Prohibition and Moratorium are inconsistent with the many exceptions the City has granted, which belies the City’s stated interests.
The scope of the Advertising prohibition is vast due to the lack of definition of “advertise” and “promote.”
The Advertising Prohibition is unworkable in practice because of the need for event planners to communicate and solicit support to prepare to apply for a permit and hold an event. The lack of any enforcement history for the Advertising Prohibition before March 2023 demonstrates the slight value of the City’s claimed interest. There are many alternative means of protecting genuine interests.
[ . . . ]
The Advertising Prohibition and Moratorium are impermissible prior restraints on speech. To bar all communication about an event until a permit is approved is not just overbroad but an impermissible prior restraint on the exchange of ideas. Similarly, to bar all public location events for a six-month period is an invalid prior restraint, even though not based on content. Government does not have the right to halt or suppress general speech.
And this from an article by Mark Eddington in The Salt Lake Tribune:
Drag shows in St. George have embroiled municipal staff and City Council members in controversy over the past year. Councilwoman Michelle Tanner has been especially vocal in her opposition to drag performances, which she argues have a corrupting influence on children.
For instance, Tanner was loudly critical of City Manager Adam Lenhard who, acting on the advice of attorneys, declined to deny a permit for a drag show HBO staged at Town Square Park last June. Lenhard later resigned under pressure and accepted a $625,000 settlement rather than sue the city for wrongful termination.
Tanner also spearheaded an unsuccessful effort to revoke the city’s sponsorship of the Downtown Farmers Market in Vernon Worthen Park due to the owners’ decision to allow Southern Utah Drag Stars to operate a photo booth at Modern Farm and Artisan Co-op, their private and separate business on downtown Main Street.
The costs to taxpayers in defending unconstitutional laws issue: As indicated above, what is especially notable about the Utah story is that when, on the advice of counsel, the city manager declined to enforce the city’s anti-drag show permit requirement, he was effectively forced to resign. When he thereafter threatened to sue for wrongful termination, the city settled for a large sum of money. In the weeks to come we plan to discuss the financial costs (e.g., awards and attorneys’ fees) of defending such unconstitutional laws in a variety of areas. Stay tuned — rklc.
- Southern Utah Drag Stars v. City of St. George (Federal District of Utah, June 16)
- “Judge Grants Southern Utah Drag Stars Preliminary Injunction to Host Drag Show,”ACLU press release (June 20)
Plaintiffs were represented by eleven lawyers, with or connected with the ACLU. The lead lawyer appears to be Jeremy Creelan (partner: Jenner & Block).
Valentina De Fex (senior staff attorney for the ACLU of Utah)
Rémi Jaffré (partner: Jenner & Block)
Attacks on drag performances: Sample news items
- Kate Ruane, Jonathan Friedman, Samantha LaFrance, Julie Trébault, “Laws Restricting Drag Shows Should Scare Everyone who Believes in Free Expression,” PEN America (Jan. 19)
- Greg Gonzales, “What a drag — Montana outlaws ‘glamorous’ attire in public schools and libraries,” FIRE (May 26)
- Conor Friedersdorf, “Drag Shows Are Free Speech,” The Atlantic (Jan. 20)
- “Tennessee Tech still investigating, enforcing event ban on LGBTQ+ and theater groups that hosted drag show,” FIRE (Oct. 31, 2022)
Book on First Amendment and LGBTQ Equality
- Carlos A. Ball, “The First Amendment and LGBT Equality: A Contentious History” (Harvard University Press, 2017)
Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.
Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.
Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.
- “Delaware ACLU releases ‘Guide to the First Amendment for LGBTQ+ Youth’,” First Amendment News 355 (Nov. 11, 2022)
- “New book on forgotten LGBTQ+ First Amendment case — Rowland v. Mad River Local School District (1985),” First Amendment News 354 (Nov. 2, 2022)
Two scholarly articles
- Brett V. Ries, “Don’t Be A Drag: How Drag Bans Can Violate the First Amendment,” Tulane Journal of Law and Sexuality (forthcoming 2023-2024)
Drag is currently under attack in the United States, and anti-drag violence is increasing. As part of the attack on drag, state governments across the country are attempting to ban or restrict drag performances. At the root of these restrictions and oppositions to drag is ultimately lawmakers’ disapproval with the inherent message drag sends: that gender nonconformity is okay. This Note makes the argument as to why drag is expressive conduct that inherently contains a viewpoint on gender norms. Then, by pulling themes from recent anti-drag legislation, this Note lays out the relevant First Amendment tests and then applies them to drag restrictions to analyze whether these restrictions pass constitutional muster. It argues that while some types of drag performances may be constitutionally restricted, such restrictions would ultimately only cover a small amount of what drag can be.
Drag can and has moved audiences and liberated individuals. It spreads a message of love and acceptance across the country and the world. People do not have to agree with that message or expression, including government officials. But, if the Supreme Court has made anything clear in its First Amendment cases, it is that the government cannot prohibit expression just because it disagrees with the message. Drag artists should continue to share their art and spread their messages, reaffirming our country’s commitment to freedom of expression.
- Zach Cihlar, “What Case Law Suggests About Legislative Attitudes Towards Drag Performance,” AELJ Blog (March 15)
2022-2023 SCOTUS term: Free expression and related cases
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — From ScotusBlog: “When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for ‘[a]ny non-commercial use of a mark’ does not shield parody, criticism, or commentary from a claim of trademark dilution”. (This from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” (Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
- Vidal v. Elster
- O’Connor-Ratcliff v. Garnier
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (argued, April 19)
- Center for Medical Progress v. National Abortion Federation
- Mazo v. Way
- Tingley v. Ferguson
- Frese v. Formella
- National Rifle Association of America v. Vullo
- U.S. v. Hernandez-Calvillo
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Klein v. Oregon Bureau of Labor and Industries
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)
Liability Anti-Terrorism Act
- Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)
Section 230 immunity
- Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)
- Mobilize the Message v. Bonta
- North Carolina Sons of Confederate Veterans v. North Carolina Dept. of Transportation
- Price v. Garland
- Keister v. Bell
- Morgan v. Arizona
FAN 383: “Illinois Bans Book Bans”
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.