The United States Constitutions First Amendment guarantees individuals the right to free speech and free expression. When analyzing a First Amendment claim, the court must first look at whether it is a content based restriction or a content neutral restriction. If it is content based, it means the restriction is due to the subject matter being said or expressed. This type of law will trigger a strict scrutiny analysis, and for the law to survive it must be narrowly tailored to a compelling interest. If it is content neutral, the court will use intermediate scrutiny and focus more on the time and place of what is being said.
The First Amendment has been interpreted to protect freedom of expression in an individuals clothing choice. In 1971, the Supreme Court overturned a conviction of a man prosecuted for wearing a shirt that had an expletive against war in the case Cohen v. Cal, which led the court to examine free expression in regards to clothing. [1] The court analyzed how this shirt impacted the public and whether it was obscene, and ended up overturning the conviction to reinforce the importance of free expression. [2]
In March, 2023, Tennessee’s governor became the first governor to sign a bill that banned adult cabaret somewhere where the show could be viewed by someone who is not an adult. [3] The court was presented with Friends of George’s Inc. v. Tennessee, shortly after the bill was introduced. [4] In this case, the plaintiff’s challenged the enforcement of this law alleging that it infringes on the First Amendment protections. [5] The court explained how adult cabaret is defined as performances that are harmful to minors including “male or female impersonators or similar entertainers,” which plaintiffs argued was unconstitutionally broad. [6] In Friends of George, the court ultimately held that enforcing a preliminary injunction against the enforcement is just due to multiple First Amendment concerns. [7]
Texas courts have also had to look at similarly designed bills. In the 2023 case, Woodlands Pride Inc, v. Paxton, the district court evaluated the constitutionality of a state law known as “S.B. 12.” [8] The governor, Greg Abbott made no attempt to hide that this bill was targeting drag performers as he tweeted, “Texas Governor Signs Law Banning Drag Performances in Public. That’s Right,” immediately following him signing this law. [9] The bill itself bans “sexually oriented performances,” and creates civil and criminal penalties for entities hosting events and the performers themselves. [10] The act then went on to create five categories of sexual conduct that would violate the law:
The fifth category being, “the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.” [11] Here, it is clear that the fifth category is targeted at drag performers as using accessories to exaggerate characteristics is commonly by drag queens. This bill also has a statement of intent where the sponsors of the bill wrote this was about “recent cultured trend” of drag performances. [12]
Plaintiffs argued that many of the terms included in this bill were incredibly vague and unconstitutional. [13] Plaintiff called witnesses who described the importance of expressing messages through drag, how it is an artistic endeavor allowing individuals to share messages of kindness and acceptance, or political messages. [14] When evaluating the claims, the court did note that drag shows can express all different emotions, have a variety of purposes, and can express social commentary, therefore there is at least some level of First Amendment protections that should be given. [15] After hearing all the testimony, the court found that the bill was not narrowly tailored and overall it is unconstitutional. [16]
Courts in Utah have also had to look at similar challenges to similar laws as well. In the 2023 case S. Utah Drag Stars v. City of St. George, the plaintiffs claimed there was a First Amendment violation when they were not allowed to use a public square for a drag show to express support for individuals with non-traditional gender identities. [17] However, the city of St. George denied the permit through a never before enforced ordinance that prohibited special event advertising before a final event permit was obtained. [18]
Individuals who wanted to perform testified in court that, “drag is an art form, a source of entertainment, and conveys a form of activism,” while also being able to convey “valuable political messages to convey that individuals with gender presentation and identities outside the majoritarian norm are welcome in public places.” [19] The court here held that drag is a protected form of speech as it is a medium of expression, finding the ban unconstitutional. [20]
In conclusion, it is extremely likely we will continue to see lawsuits being brought against states that enact similar statutes. It is also very likely that we will see drag queens and others who use their clothing to express themselves continue to fight for their right of free expression.
SOURCES
[1] Cohen v. Cal.., 403 U.S 15 (1971)
[2] Id. at 20
[3] Tenn. Code Ann. ⸹ 7-51-1407
[4] Friends of George’s Inc. v. Tennessee 667 F. Supp. 3d 755 (March 31, 2023)
[5] Id. at 759
[6] Id.
[7] Id. at 766
[8] Woodlands Pride Inc, v. Paxton, 2023 U.S Dist. LEXIS 171268
[9] Id. at 4
[10] Id. at 6
[11] Id. at 7
[12] Id. at 9
[13] Id. at 14
[14] Id. at 16
[15] Id. at 35
[16] See Id. at 41, 9
[17] S. Utah Drag Stars v. City of St. George, June 2023, 677 F. Supp. 3d 1252
[18] Id.
[19] Id. at 1286
[20] Id.
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