A federal appeals court has re-instated Tennessee’s restrictions on drag performances. Thursday’s order reverses a district court ruling last year, which had prevented the ban from taking effect.
Judge Thomas Parker had sided with the plaintiffs in the case, an LGBTQ theater company based in Memphis. Friends of George’s brought the suit against the first-in-the-country law, arguing that it violated their First Amendment rights and that its vague language left them in a legal gray area.
Judge Parker agreed, writing that the Adult Entertainment Act “encourages discriminatory enforcement.” Tennessee Attorney General Jonathan Skrmetti appealed the decision.
In its ruling, the Sixth Circuit Court of Appeals did not focus on the constitutionality of the law, but on whether the plaintiffs had standing to sue. In a 2-1 decision, the three-judge panel ruled that Friends of George’s could not prove that their performances would’ve been subject to the AEA.
A separate challenge to Tennessee’s drag restrictions in East Tennessee is still in effect. A district court in Blount County prevented the area’s district attorney from enforcing the ban while the case is heard.
Plaintiff attorney Melissa Stewart told WPLN News that they will be filing a petition in the next two weeks so that the full court can review the case.
“The Sixth Circuit did not hold that this law is constitutional. I think that that’s very important to emphasize. They did not decide the merits of this case. This is a procedural issue,” Stewart said. “While we strongly disagree with the Six Circuit’s decision today, it is certainly not the end of the road. This law is still a flagrant violation of the First Amendment, and we intend to keep fighting to make sure that Tennesseans are protected from it.”
In a statement, Tennessee’s Attorney General Jonathan Skrmetti lauded the ruling, saying that the AEA has been misrepresented since its adoption.
The law never mentions drag, but refers to performers as “male or female impersonators,” and bans performances that may be “harmful to minors.” Since Friends of George’s maintained that its performances were appropriate for all ages, the Sixth Circuit dismissed its case.
“As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression,” Skrmetti said. “But as the Court noted, Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exhibition of obscene material to children. The Court of Appeals focused on what the law actually says and ordered the case dismissed.”
In his 2023 ruling, Judge Parker noted that, in a transcript from the legislature, “drag” is referenced 29 times, while “male or female impersonators” is said 11 times. Parker wrote that “the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.”
