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A federal appeals court on Thursday dismissed a challenge to a Tennessee law that restricts public drag show performances in the state.
The appeals court ruled 2-1 that Friends of George’s, a Memphis-based nonprofit that produces drag performances and comedy sketches, lacked the legal standing challenge the law, with the dissenting judge saying that he thought the plaintiffs had standing to challenge the measure, which he called an “unconstitutional content-based restriction on speech.”
Passed in 2023, Tennessee’s Adult Entertainment Act sought to limit “adult cabaret performances” on public property to shield children from viewing them. Violators could be charged with a misdemeanor and repeat offenders with a felony.
The Tennessee law was the first of its kind to be enacted in the US. State officials have argued that the measure is not a full ban and is only intended to stop overtly sexual performances in front of minors.
In June 2023, a federal judge barred enforcement of the law in Shelby County, Tennessee, which is home to Memphis, saying the law was an “unconstitutional restriction on the freedom of speech.” But the 6th US Circuit Court of Appeals reversed that decision on Thursday and threw out the case in its entirety.
The appellate court said Friends of George’s failed to show how it would be harmed by the law.
Circuit Judge John Nalbandian wrote that the group “faces no certainly impeding threat of prosecution.” Nalbandian, an appointee of former President Donald Trump, was joined by Circuit Judge Eugene Siler, an appointee of former President George H.W. Bush.
Circuit Judge Andre Mathis, an appointee of President Joe Biden, said in his dissent that he would have upheld the lower-court’s ruling that blocked enforcement of the law in Shelby County.
Friends of George’s “did not have to wait” for state prosecutors to enforce the Adult Entertainment Act “before challenging the constitutionality of the law,” Mathis wrote.
“Given the nature of its shows, along with the general admissions policy followed by the Evergreen Theater, there is a substantial probability that (Friends of George’s) will engage in conduct that is arguably affected by the (Adult Entertainment Act) because it performs adult cabaret entertainment in a location where it could be viewed by a minor. And if it does, (Friends of George’s) faces a certain threat of prosecution,” the judge wrote.
Though the ban remains in effect in much of the state, officials are blocked from enforcing it in Blount County as part of a separate lawsuit against it.
“I feel quite confident that that case is going to survive standing review and we’re still considering whether to appeal the standing decision here,” said Brice Timmons, an attorney representing the plaintiffs in the Friends of George’s lawsuit.
Republicans say the performances – which often feature men dressing as women in exaggerated makeup while singing or entertaining a crowd, though some shows feature bawdier content – expose children to sexual themes and imagery that are inappropriate.
LGBTQ advocates, however, argue that not all drag shows are sexual in nature and laws such as the one in Tennessee stigmatize the community and could violate the First Amendment.
