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MTSU Pre-Law Professor: Laws Restricting Drag Performances Pose Potential Negative First Amendment Rights Implications

/ The Upper Cumberland's News Leader
MTSU Pre-Law Professor: Laws Restricting Drag Performances Pose Potential Negative First Amendment Rights Implications

Citizens concerned about drag shows in Cookeville have called for local lawmakers to adopt current state laws or create their own in hopes of preventing the shows–but the process is not so black and white.

MTSU Pre-Law Program Director Dr. Robb McDaniels said there are current laws about things such as adult-oriented establishments and public indecency. He said most of those current laws simply give counties and local governments the option of accepting that kind of regulatory framework for possible restrictions.

“If the county chooses to accept that, I think a two-thirds vote is what they have to do,” McDaniels said. “They’re allowed to apply reasonable restrictions including things like licensing, zoning, location requirements, code compliances, stuff like that, to these kinds of businesses.”

However, McDaniels said applying those to drag shows or creating ordinances that target drag shows brings the potential of violating the First and Fourteenth Amendments.

“If these local ordinances are seen as targeting speech about human sexuality, expressive speech in drag shows rather than an authentic attempt and preventing obscenity,” McDaniels said. “Then those laws will probably not withstand scrutiny.”

Because of the First Amendment, McDaniels said regulations on speech are supposed to be content-neutral: While you can regulate the time, place, or manner of speech, you cannot regulate the content itself. For example, McDaniels said laws against flag-burning are unconstitutional because they target political protests and not when it is part of a legitimate process to retire a flag that has become old and tattered.

McDaniels said it is not easy to go after a drag show simply for being a drag show. He said while you can try to regulate things that are deemed more obscene or sexual in nature, simply going after drag shows as a whole presents a variety of constitutional issues.

“A lot of the people wanting to crack down on drag shows want to define it and sort of make it definitional in the law that it’s obscene by its very nature,” McDaniels said. “But that’s not necessarily true (…) If laws are seen as targeting the message that is being delivered, courts use the highest level of scrutiny that is the most suspicious that those laws are unconstitutional under the first amendment.”

McDaniels said one method to possibly regulate this kind of entertainment is the ability to prove that it has negative secondary effects on the community such as a rise in crime or prostitution. He said the problem is, it is harder to make a case that there are negative consequences from a drag show as opposed to something like a strip show. McDaniels said there is not much evidence that drag shows contribute to increased criminality.

There are currently three bills advancing in this general assembly regarding adult cabarets or drag performances. This includes HB0009 and SB0003 which, “creates an offense for a person who engages in an adult cabaret performance on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult.” The other is HB30, which, “requires a person to obtain a valid entertainer permit from the adult-oriented establishment board, in those jurisdictions with a board, prior to performing adult cabaret entertainment for compensation; prohibits public, private, and commercial establishments from allowing persons under the age of 18 to attend a performance featuring adult cabaret entertainment.”

McDaniels said he does not believe the courts are likely to allow the strictest regulations of these laws, but it does open the possibility that tougher regulations on sexual expression are possible. He said one of the unknowns right now is that the country is seeing a majority far right-leaning court that seems to not care very much about precedence.

“So there’s always a chance that the current court would try to move in a direction that allowed a lot more regulation of sexual expression,” McDaniels said. “I think that’s probably unlikely because Gorsuch and Roberts are a bit more moderate on this than Justices like Alito and Thomas, but I think we’ve got a lot of questions about how far this court is willing to go to allow conservative legislation at both the state and the local levels.”


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