The Volokh Conspiracy
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Tennessee Bans Pornographic Performances by "Male or Female Impersonators" Where Minors Can See Them
The newly enacted statute provides:
… "Adult cabaret entertainment" … [m]eans adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; …
"Entertainer" means a person who provides: (A) Entertainment within an adult-oriented establishment, … or (B) A performance of actual or simulated specified sexual activities, including removal of articles of clothing or appearing unclothed, [both] regardless of whether a fee is charged or accepted for the performance …;
It is an offense for a person to perform adult cabaret entertainment:
(A) On public property; or
(B) In a location where the adult cabaret entertainment could be viewed by a person who is not an adult ….
To understand this, one has to read § 39-17-901, which provides:
"Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:
- Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;
- Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and
- Taken as whole lacks serious literary, artistic, political or scientific values for minors ….
"Prurient interest" means a shameful or morbid interest in sex;
And it's also important to know that the Supreme Court has held that, even as to "harmful to minors" material (also known as "obscene as to minors"), "to be obscene 'such expression must be, in some significant way, erotic.'"
This therefore means that the bill doesn't ban drag shows generally, or even drag shows that can be seen by minors. Rather, it just bans drag shows that could be viewed by minors (or are on public property) that depict "nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse" that are "in some significant way, erotic," appeal to minors' interest in sex, and otherwise satisfy the three-prong.
Bans on distributing "harmful to minors" material to minors have been upheld (see Ginsberg v. N.Y. (1968), which used the then-existing definition, but which has been understood to justify the more modern definition used by the Tennessee statute). Likewise, courts have generally upheld restrictions on displaying such materials where minors can see them. So the law may well be consistent with the First Amendment, but precisely because it narrowly focuses on essentially pornographic material (in the sense of requiring depiction of nudity or sex in an erotic way that appeals to minors' interest in sex). Drag shows that lack such material remain protected by the First Amendment, and aren't covered by the law (though of course there might be worry that some prosecutors will overfocus on the "male or female impersonator" portion of the law and won't pay enough attention to the other requirements).
At the same time, there are three possible twists. First, the law applies to "public property" even where minors aren't present (e.g., if someone rents space from a government entity and puts on a show while making sure that minors aren't admitted). This might still be upheld as a reasonable, viewpoint-neutral restriction on speech on government property that isn't a traditional public forum. But it's a bit complicated.
Second, one could argue that specifically targeting "male or female impersonators" makes the law an impermissibly content-based classification even within the First Amendment exception for "harmful to minors" speech that's displayed to minors. See R.A.V. v. City of St. Paul (1992) (holding that such content-based restrictions even within an unprotected category of speech are presumptively unconstitutional).
Third, to the extent that the ban on "male or female impersonator[s]" necessarily discriminates based on sex—a woman dressed as a woman isn't a female impersonator, but a man dressed precisely the same way is one—it might violate the Equal Protection Clause, which the Supreme Court has generally held presumptively forbids sex classifications.
Note, though, that even if the statute is struck down on the second or third grounds, the same conduct (except perhaps pornographic shows in spaces rented from the government where minors are excluded) could be banned by a general prohibition on "harmful to minors" performances where minors are present, and might indeed already be banned by Tennessee law that regulates sexually themed performances (though I'm not positive about that).