An anti-drag performance law in Tennessee has been declared unconstitutional. Tennessee’s broad new “adult cabaret entertainment” law banned “male or female impersonators” from performing on public property or in any location where the performance “could be viewed by a person who is not an adult” if their performance could be deemed “harmful to minors” in any way. Violators faced criminal penalties, including misdemeanor charges upon a first offense and felony charges after that.
On Friday, a federal judge declared the law unconstitutional, on the grounds that it violates the First Amendment.
In a scathing rebuke of Tennessee’s Adult Entertainment Act (AEA), U.S. District Judge Thomas Parker—a Trump appointee—offered a vigorous defense of free speech.
“Freedom of speech,” wrote Parker, protects “the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.”
“The AEA was passed for the impermissible purpose of chilling constitutionally-protected speech,” Parker continued. While “Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors,” the law as passed is neither narrowly tailored nor the least restrictive way to advance that interest.
For one thing, he pointed out, the “harmful to minors” standard applies to children of all ages. The law also applies anywhere a minor could be present, without requiring that they actually be present there. That means things that might be inappropriate for, say, a 4-year-old would be illegal in places where even a 17-year-old might have a chance of seeing them.
“The AEA is both unconstitutionally vague and substantially overbroad,” Parker concluded.
The judge dismissed the state’s argument that the law was permissible because it dealt only with “obscenity which is the most patently offensive in its prurience.” Parker wrote:
There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is “obscene” in the vernacular, and material that is “obscene” under the law. Miller v. California provides the standard for determining “obscenity” under the law…. Legal obscenity is an exceptionally high standard as one of its prongs requires that the speech “not have serious literary, artistic, political, or scientific value.”…Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not obscene—speech receives less protection than political, artistic, or scientific speech….Whether some of us may like it or not, the Supreme Court has interpreted the First Amenment [sic] as protecting speech that is indecent but not obscene.
Parker also pointed out that the “harmful to minors” standard could lead to discriminatory criminal enforcement: “The obscenity standard for adults already gives a lot of discretion to an individual officer’s judgment on what she considers harmful under community standards.” The “‘harmful to minors’ standard lowers the floor for criminal behavior, equipping law enforcement officers with even more discretion. The chance that an officer could abuse that wide discretion is troubling given an art form like drag that some would say purposefully challenges the limits of society’s accepted norms.“
You can find the full decision here. Chris Geidner has a good analysis of the decision here.
FREE MINDS
A group of Arkansas libraries, librarians, and booksellers is challenging a state law that they say “forces bookstores and libraries to self-censor in a way that is antithetical to their core purposes.” Arkansas Act 372 makes it a crime punishable by up to a year in prison to provide, show, or make available to a child any item that is determined to be “harmful to minors.”
“This will necessarily force libraries and bookstores to confine to a secure ‘adults only’ area—and so to segregate from their general patrons and customers—any item that might be deemed harmful to the youngest minor, even if there is no constitutional basis for limiting its availability to older minors or adults,” states their complaint, filed June 2 in federal court.
Where libraries and booksellers lack the space or resources to construct “adults only” areas, their only choice will be to remove all materials which might be deemed harmful to their youngest, least developed patrons or customers.
By so broadly regulating the display of protected materials that are constitutionally
protected as to older minors and adults, the Availability Provision violates the First and
Fourteenth Amendments because it imposes a content-based restriction on speech that (a) is not narrowly tailored, (b) is overly broad, and (c) is vaguely worded.Arkansas knows that it cannot directly prohibit libraries and booksellers from making books and other items available to their patrons and customers on such a sweeping basis, as its prior attempt to limit the availability of material deemed harmful to minors (in a nearly identical law) was struck down by an Arkansas federal court as “facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution because such provisions are overbroad and impose unconstitutional prior restraints on the availability and display of constitutionally protected, non-obscene materials to both adults and older minors.”
What Arkansas cannot permissibly do directly through the Availability Provision, it likewise cannot not do indirectly through Section 5 of Act 372, which requires that public libraries establish a process through which any “person affected by [a] material” in their collection can challenge the “appropriateness” of that material’s inclusion in the library’s main collection (the “Challenge Procedure”).
Skye Perryman, chief executive of Democracy Forward, told The New York Times that “this is a case that has broad implications for not only the ability of people to access materials in libraries in Arkansas, but for overall foundational principles of our democracy. If this law were to go into effect, librarians could face jail time for failing to take actions that flagrantly violate the U.S. Constitution and Arkansas Constitution.”
FREE MARKETS
“Today I met with over a dozen migrants who were brought to Sacramento by private plane, with no prior arrangement or care in place,” said California Attorney General Rob Bonta on Saturday after a private plane full of migrants showed up in his city. “California and the Sacramento community will welcome these individuals with open arms and provide them with the respect, compassion, and care they will need.”
The 16 people flown to Sacramento had been staying at a migrant center in El Paso, Texas. According to Eddie Carmona of PICO California, a group helping the migrants in Sacramento, they accepted an offer from people promising jobs and travel assistance. Instead, they were taken to New Mexico, then flown to Sacramento and dropped in front of the Roman Catholic Diocese, with no notice to anyone in Sacramento and no plans to help the migrants find their footing there.
Bonta claims this bait-and-switch seems to have been arranged and paid for by the state of Florida. If so, it would be the latest in a series of similar stunts the state has orchestrated. Last fall, for instance, Gov. Ron DeSantis arranged to have almost 50 migrants flown from San Antonio, Texas, to the small island of Martha’s Vineyard. A lawsuit filed by several of the migrants claims that Florida officials “made false promises and false representations” in order to lure them onto the plane.
There is, of course, nothing wrong with helping migrants who cross into Southern border states travel around the country—or with giving other places throughout the country the opportunity to welcome more immigrants, who can be a net boon to communities who receive them. But the way these trips have allegedly been arranged, lying to the migrants and keeping the communities receiving them in the dark, needlessly makes things more difficult for everyone involved. And the underlying premise of treating migrants as part punishment, part political pawns is grotesque.
As Bonta said: “State-sanctioned kidnapping is not a public policy choice, it is immoral and disgusting.”
QUICK HITS
• Adam Smith wasn’t a progressive. “Stop quoting him out of context on taxation, education, and monopoly,” David Friedman writes.
• J.D. Tuccille takes a look at how the European Union’s Digital Services Act threatens Americans‘ free speech.
• Someone in Utah is challenging the Davis School District’s inclusion of the Bible and the Book of Mormon in school libraries.
• “Tupperware once revolutionized women’s roles—in the kitchen and the country’s economy—and sealed its place in American lore as a synonym for kitchen storage,” says NPR. “It popularized party-style sales. Its plasticware is in museums. But now, the company faces financial peril.”
• The Washington Post profiles Carly Ann Goddard, a 22-year-old influencer in Montana who is one of four content creators challenging the state’s ban on TikTok.
• YouTube will stop removing content that promotes false claims about U.S. elections.
