A federal appeals court on July 18 reversed a lower court ruling as it upheld a law in Tennessee that bans performances featuring strippers or men dressed as women in locations where they could be viewed by children.
The group, Friends of George’s, sued Tennessee officials over the law, alleging it violated rights conferred by the U.S. Constitution’s First Amendment.
The appeals court panel reversed that ruling, finding that Friends of George’s has not provided evidence that it intended to violate the law.
That means the group lacks standing, the judges said.
Even if the organization alleged it intended to violate the law, it would need to show that a constitutional interest would be affected, according to the ruling.
“But the law in this area is clear—there is no constitutional interest in exhibiting indecent material to minors,” U.S. Circuit Judge John Nalbandian wrote for the majority.
He pointed to a previous ruling from the appeals court that found certain speech, “while fully protected when directed to adults, may be restricted when directed towards minors.”
“The only constitutionally protected expressions implicated by the AEA are adult-oriented performances that can be constitutionally restricted from minors but not from adults—a narrow slice of speech,” Judge Nalbandian said. “And the statute doesn’t even ban these performances, merely restricting them to adult-only zones.”
U.S. Circuit Judge Eugene Siler Jr. joined Judge Nalbandian in the ruling.
U.S. Circuit Judge Andre Mathis said in a dissent that Friends of George’s has standing because it will likely hold shows that are affected by the law, leading it to face a threat of prosecution under the statute. He also said that the group’s shows, which have no age restrictions, appear to be protected by the First Amendment.
The majority and dissent also diverged over particulars of the law. The majority said the law’s prohibition of shows “harmful to minors” refers “only to those materials which lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor,” citing a 1993 ruling from the Tennessee Supreme Court. But the dissent said it bars shows to all minors, noting that no court has narrowed the law as written by state legislators.
Friends of George’s said in a statement it was shocked and disappointed with the decision.
“Instead of addressing the constitutionality of Tennessee’s drag ban, today’s ruling has left us and thousands of others in the LGBTQ+ community dangerously in limbo, with no clear answers as to how this ban will be enforced and by whom,” the group said in a social media post.
The organization is consulting with legal counsel on the next steps in the case as it rehearses its next production, which is set to open on Aug. 2.
Tennessee Attorney General Jonathan Skrmetti said in a statement that the law has been repeatedly misrepresented since it was signed by Gov. Bill Lee.
“As a state overflowing with world-class artists and musicians, Tennessee respects the right to free expression. 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,” he said. “The court of appeals focused on what the law actually says and ordered the case dismissed.”
