Two student groups at Tennessee Tech University are now facing an investigation after hosting a drag show at an on-campus theatre. On August 20th, local organization Upper Cumberland Pride and two university student groups, the Lambda Gay-Straight Alliance and the Tech Players, held a drag show at the university's Backdoor Playhouse.
A clip from the show, featuring a child giving money to a drag performer lip-synching to "Take Me To Church," was posted on Twitter on September 7th by anti-child trafficking activist Landon Starbuck.
"Tennessee Tech University hosted a drag show that had little kids handing cash to the drag queen who was performing a dance clearly meant to mock Christians," tweeted Starbuck. "Every parent who pays to send their kids to @tennesseetech deserves to know that this is what they're allowing on campus."
The clip quickly garnered outrage, and Tennessee Tech's administration burst into action, launching an investigation of the two clubs and unilaterally canceling two upcoming events from the organizations. Further, the clubs were suspended from hosting any further events during the duration of the investigation.
"I am disturbed and dismayed about the activities in a video circulating on social media from a recent event on Tennessee Tech's campus," wrote the university's president, Phil Oldham, in a statement. "I do not feel the activities in the video represent Tech's values, and I do not condone explicit activity where minors are present. I also am offended by disparaging mockery toward any religious group."
Oldham added that on-campus "programming should not include obscene, lewd or explicit activities," and that the investigation concerned "the inappropriate involvement of minors and a review of our policies and procedures."
However, there is one hitch to Tennessee Tech's plans—they have no legal authority to punish student organizations over a drag performance.
On September 15th, the Foundation for Individual Rights and Expression sent a letter to Tennessee Tech's administration, informing the school that drag shows are expressive content protected by the First Amendment, and as a public university, Tennessee Tech cannot punish students for hosting them.
"Tennessee Tech, as a public institution bound by the First Amendment, may not investigate or punish student groups for their expressive events," FIRE attorney Zachary Greenberg wrote in a letter to the university. "Conduct is also considered expressive when it falls within a traditionally protected genre such as art, theater, and dancing—even if it does not convey a 'narrow, succinctly articulable message'"
Further, despite Oldham's' claims, the club's drag performance does not meet the legal definition of obscenity—in fact, it is far from it. "Merely offensive events are not obscene," Greenberg told Reason. "Obscenity is typically, hard-core pornography with no artistic, literary or social value. No reasonable university can claim that this student drag show is unprotected obscenity."
While public universities are allowed to place reasonable, content-neutral "time, place, and manner" restrictions on speech, Tennessee Tech's actions are far from compliant with the standard set in Ward v. Rock Against Racism. Ward established a three-prong test for determining a reasonable "time, place, and manner" restriction on speech. Acceptable restrictions are content-neutral, narrowly tailored to serve a substantial government interest, and do not unreasonably limit alternative avenues for expressing speech. For example, an acceptable restriction on student speech might include a limit on the noise level of nighttime protests, or a ban on posting flyers in a way likely to cause property damage.
Punishing a student group for an "offensive" drag performance is clearly unconstitutional, not just because it suppresses First Amendment-protected speech, but also because Tennessee Tech's attempts to limit these performances do not meet the three-pronged test for an acceptable "time, place, and manner" restriction. Not only would a de facto ban on drag shows not be content-neutral, but it also serves no government purpose and provides no alternate methods for the performances to occur.
Drag shows—including ones where children are present—are playing an increasingly large role in our culture war. However, no matter how much a drag show may offend Tennessee Tech's administrators, the First Amendment prevents pearl-clutchers from exerting their personal views upon an unwilling student body.
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