Oklahoma's Obscenity Bait and Switch Could Ban Pride Parades and Public Drag Shows
These lawmakers expect local authorities to ban "obscenity" before it happens—a recipe for chilling a wide variety of legal speech.
Oklahoma lawmakers are suggesting that a new state law aimed at "adult performances" means municipalities must predict what sorts of events might become obscene and preemptively prohibit them. It's a clear recipe for chilling protected speech—especially drag performances, which were one of the main targets of the law.
H.B. 1217 did not explicitly mention drag performers. But supporters of the bill—such as Oklahoma state Sen. Dusty Deevers (R–Elgin)—made it clear that "grown men parad[ing] around in lingerie and exaggerated prosthetics" were their targets. "This basically, I mean, this is a no-brainer. We're basically banning drag shows in front of kids," Oklahoma Gov. Kevin Stitt said in May.
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The Obscenity Bait-and-Switch
Obscenity is a category of speech not protected by the First Amendment. But lately, conservative lawmakers have taken to using the term "obscenity" colloquially to describe all sorts of sexually oriented literature, performances, and online content that they don't like, particularly when this material involves homosexuality or gender bending.
This linguistic maneuvering often entails a bait-and-switch: Use "obscenity" in public discussions about proposed policies and then use other, more legally correct terms when actually writing regulations. In this way, conservatives can gain support for their policies by noting that obscenity is not protected by the First Amendment, then pass policies that restrict broader sorts of speech.
Oklahoma is doing something different here, but it's just as insidious. Its official policy deals in actual obscenity, but lawmakers are trying to enforce it in a way that casts a much wider net.
Back in May, the state passed a bill banning "adult performances" in public places or anywhere that kids might be present. The legislation defined adult performances to include anything featuring "obscene material," using the actual legal definition of the term.
The law made it a misdemeanor—punishable by up to a year in jail and up to $1,000 in fines—to perform obscene acts in public or in a place where minors might see it. It also barred political subdivisions of the state (cities, counties, townships, etc.) from allowing such performances. And it was passed under an emergency clause that allowed it to take effect as soon as the governor signed it.
"Our children and the general public should be free to enjoy public spaces without this threat to their moral decency," state Rep. Kevin West (R–Moore), author of the House version of the legislation, said as the bill went to the governor.
But the boundaries of obscenity are not obvious. It's not as simple as noting whether certain vulgar words are said, or counting the number of nipples shown, of drawing some bright line around the depiction of a certain sex act, or anything like that. In Oklahoma and elsewhere, the definition of obscenity turns on the Supreme Court's Miller test, a somewhat fuzzy 3-prong standard for determining if something counts as obscenity.
So Does it Ban Drag?
As noted above, some backers of H.B. 1217 were upfront about the fact that they wanted to target drag shows. But your average drag show does not rise to the level of obscenity. It's certainly not obscene just because people are are in drag—something Oklahoma Attorney General Gentner Drummond recently pointed out.
That means that Oklahoma can't go around prosecuting people just for putting on—or allowing people to put on—drag shows.
That this bill would fail to put an end to drag shows in Oklahoma should have been obvious. In fact, it should have been obvious that this bill would accomplish very little at all, legally speaking, since much of what it did was clarify a ban on already banned material.
But maybe state lawmakers in Oklahoma just don't understand the First Amendment. Or maybe they were hoping that a chilling effect would prevail—that threatening to hold municipalities criminally accountable for allowing "obscene" performances would entice them to prohibit not just actually-obscene performances but anything sexually charged, or featuring drag performers, or otherwise legally risky. If that happened, they might ensure that a much wider category of speech than actual obscenity would be curtailed.
Whatever they were thinking, it doesn't seem to have gone their way so far. Drag shows and pride parades in public places have continued. Attorney General Drummond has officially stated that drag performances are not de facto obscene.
It looks like lawmakers will have try harder if they want to intimidate local authorities into squelching speech for them…
Censorship by any other name
Now H.B. 1217's House and Senate sponsors—West and Sen. David Bullard (R-Durant)—recently asked Drummond for more clarification on how the law should be interpreted.
Their request makes clear how broadly—and unconstitutionally—they envision enforcement happening.
"We were very clear in our legislative intent," said West. "We want to protect minors and the general public from exposure to obscenity in public settings. This law was pursued to give clear direction to municipalities, event organizers and law enforcement so issues of public exposure can be avoided before they happen rather than punished after the fact."
"Our goal is to ensure that there is no confusion with municipalities about the expectations of this law," said Bullard. "If a council or organizer hosts an event they have approved then they must, by law, make sure it will not be obscene."
This "is not how obscenity works, but it is how censorship does," commented Mike Stabile of the Free Speech Coalition.
Whether a performance or art work is obscene is something to decided by juries after the material exists. Government authorities can't decide in advance of a performance or event that it might contain obscenity and therefore can't happen—that's generally presumed unconstitutional.
As Stabile put it on Bluesky: "You can't restrain speech based on what you think the speaker *might* say or do. That's prior restraint. The government can prosecute for 'obscenity' after performance, but not before it. Because you didn't actually do it."
While authorities have a little more than average leeway here when it comes to obscenity, "the thrust of the [Supreme] Court's opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured," notes Justia.
Technically, H.B. 1217 doesn't require prior review or prior restraint. It just says that a government body that allows an obscene performance can be prosecuted for it afterward.
But West's and Bullard's comments make it clear that they expect the authorities to pre-judge performances and events before they happen and preemptively reject those that could possibly contain obscenity. In their October 28 letter to the attorney general, they state explicitly that their law's intent was "preventative." It was designed "to give clear direction to municipalities, event organizers, and law enforcement so that issues of public exposure could be avoided altogether," they write.
However the law was written, they envision it as requiring local governments—including local law enforcement—to base decisions around public events on a sort of "pre-crime" theory, in which they're supposed to intuit in advance whether any person at any public event might cross a line.
That's a recipe for requiring the rejection of anything even slightly bawdy, or anything at all concerned with sexuality, including such events as a pride parade or a sex worker rights rally. Sure, these things may not legally be obscene, but a city council, playing it safe, might decide it's prudent not to grant them an event permit. A local cop, playing it safe, might decide it's necessary to yank any drag performer he sees off the street.
The First Amendment would have something to say here, should anyone censored in this way choose to sue. I'm not sure how West, Bullard, Deevers, and their ilk think this will work out in their favor in the long run. But it's yet another reminder how far the current crop of conservatives will go to impose their version of morality—a morality in which stopping people from watching men in wigs and dresses dance to pop songs is, apparently, of the highest importance.
Heritage Foundation President Calls for Arresting Pornographers
In a recent X post, Kevin Roberts, the head of the conservative Heritage Foundation, opined that it's "time to arrest, prosecute, and convict the sick perverts behind OnlyFans and PornHub."
Roberts didn't provide any criminal reason for these arrests. He didn't pair his call for prosecution with some claim that the "tech tycoons" behind these platforms are violating any specific laws. But he did accuse them of "profiting to the tune of millions by preying on America's young men and women."
"Preying on them" by publishing legal speech. Legal speech that people willingly seek out and consume.
Roberts' comments reflect a wider shift in the way conservatives have been talking about pornography. For a decade or more, we saw Republican anti-porn crusaders talk about porn as a "public health crisis" that must be regulated (a strategy that at least acknowledges that they can't simply ban First Amendment–protected speech) or as an entity that we must strive to keep from kids (by instituting the age verification laws and things like that).
Now high on the power of the Trump administration, and with age verification laws in place, they're shifting to speaking about porn as something that must be banned outright and porn producers and peddlers as people who should be criminalized.
Notably, Roberts thanked Jonathan Haidt—liberals' favorite "moderate" anti-tech voice—for being "in this fight" with Roberts' think tank, posting pictures of Haidt speaking at a recent Heritage event.
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