The Volokh Conspiracy
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Court Strikes Down Tennessee Ban on Pornographic Performances by "Male or Female Impersonators" Where Minors Can See Them
Properly crafted restrictions on displays of pornographic material where minors can see it are constitutional; but the court rules, among other things, that this restriction (1) discriminatorily targets drag shows, (2) lacks an exemption for minors escorted by parents, (3) applies even to venues that try to card attendees but are duped by a fake ID.
[1.] A Tennessee statute, enacted last year, provided:
… "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 would be allowed to see them.
A properly crafted law may thus cover pornographic drag shows, 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).
[2.] Nonetheless, this law, Judge Thomas Parker (W.D. Tenn.) held yesterday in Friends of Georges, Inc. v. Mulroy, violates the First Amendment. The opinion is 70 pages long, so let me just summarize the key points (with some inevitable oversimplification):
[A.] R.A.V. v. City of St. Paul (1992) holds that, even within an unprotected category of speech, content-based and especially viewpoint-based restrictions are presumptively impermissible. Thus, for instance, a law may ban all "fighting words" (face-to-face personal insults that have the tendency to cause fights), because there's a First Amendment exception for such fighting words; but it may not specifically focus on, say, racist fighting words (the issue in R.A.V. itself). Likewise, the court held, this law unconstitutionally targets male and female impersonation; even if limited to constitutionally unprotected displays of obscene-as-to-minors material to minors, that's an impermissible content classification.
The court also notes that the law treats such impersonation differently than, say, display of porn to minors generally, since it specially targets performers, while Tennessee's general ban on displaying sexually themed material target just business owners.
[B.] The law lacks an exemption for minors who are brought to the event by their parents. Ginsberg, the 1968 case upholding the ban on sale of "obscene-as-to-minors" material to minors expressly noted that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." More broadly, the justification for upholding the general sale ban rested in considerable measure on parental discretion:
[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility.
Likewise, Davis-Kidd Booksellers, Inc. v. McWherter (Tenn. 1993), which upheld the Tennessee ban on display of material in places where minors were allowed, also involved a law that protected parental discretion. That law provided that "It is an affirmative defense to prosecution under this section that the minor to whom the material or show was made available or exhibited was, at the time, accompanied by his parent or legal guardian, or by an adult with the written permission of the parent or legal guardian."
[C.] The law also applies to any place where the material "could be viewed by a person who is not an adult." This, the court notes, provides no exception for places that check id's but face the risk of being duped by a fake id:
Plaintiff could build a card-checking fortress around its theatre and a child could still be present.
This sort of strict liability regime, the court concluded, is unconstitutional when it comes to expression that is generally constitutionally protected for adults.
[D.] The law is also unconstitutionally vague, because it doesn't make clear the age of the "minors" as to which "morbid interests of minors," "suitable for minors," and "value[] for minors" are to be determined. If the material is viewed by a jury as unsuitable and valueless for 5-year-olds but suitable and valuable for 17-year-olds, would it be prohibited? (If the response is that suitability turns on the age of the minors in the audience, one might ask whether it turns on the age of the youngest minor, the oldest minor, most of the minors, or something else.) The court concludes that this isn't made sufficiently clear.
Now the Tennessee Supreme Court in Davis-Kidd interpreted a similar statute that banned the "display for sale or rental a visual depiction" that contained obscene-as-to-minors material as covering "only … those materials which lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor." But the court declined to apply this limiting construction to this statute.
[3.] I'm inclined to think that the court's analysis is correct as to R.A.V., parental rights, and strict liability, though I'm skeptical as to the court's vagueness analysis. (As to vagueness, I think the court ought to have concluded that the Tennessee Supreme Court's interpretation of a similar provision, coupled with the interpretive canon that ambiguous statutes should generally be interpreted to avoid constitutional problems.) For my earlier thoughts on the statute, see this post.
Congratulations to Brice M. Timmons and Melissa J. Stewart (Donati Law, PLLC), who represent plaintiff.
