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Is the Tennessee ban on drag shows constitutional?

Is the Tennessee ban on drag shows constitutional?
Posted at 10:45 AM, Mar 10, 2023

On the Sunday after the Tennessee state legislature voted to restrict drag shows, Erinn Conventry attended the Drag Brunch at Suzy Wong’s House of Yum in Nashville to express her support for the community. 

“I’m really sad about it. It’s disappointing, a bummer,” Coventry said.

Tennessee passed the first-in-the-nation law that restricts adult cabaret performances, which includes exotic dancers, strippers and female impersonators, in public spaces and in the presence of children. Those found in violation may be punished by a fine of up to $2,500 and or up to a year in jail.

Some believe Tennessee Senate Bill 3 will be challenged. 

“The Supreme Court has long held that such laws face a strict scrutiny standard of review. This is a very high bar for the state to meet. I’m not aware of any evidence that such (drag) shows cause harm or have been found to be pornographic or obscene,” said Jon Getz, an attorney who taught First Amendment law at State University of New York College at Brockport. 

Getz noted the 1975 Supreme Court case of Erznoznik vs. The City of Jacksonville. In that case, a Jacksonville, Florida, ordinance made it punishable for a drive-in theater to show films with nudity if the screen was visible from the street. The Supreme Court struck down the ordinance on First Amendment grounds.

The sold-out crowd of mostly women cheered on the drag queens Sunday as they performed their dances. Deception, a Dolly Parton look-alike, opened the show — prancing to the tune of "9 to 5." Deception pulled people from the audience to join in song and dance on stage.

All of the performances meet strict standards, said David Taylor, a partner at Suzy Wong’s. He doesn’t think the bar’s drag shows run afoul of any newly enacted laws.

“I’m not anticipating any changes (to the shows) because of the language of the law,” Taylor said.

Tennessee Senate Bill 3, known as the "Drag Ban Law," takes effect July 1. 

The bill is vague, said Getz, noting it was written in a broad sense. The attorney wonders about the definition and how the state will enact it.

“For example, a play of 'Mrs. Doubtfire' would be illegal under this law?” Getz wonders.