US appeals court upholds controversial state law

In Thursday’s ruling, justices ruled that Friends of George’s, which filed the original complaint in 2023, did not have the legal right to file a lawsuit over the Tennessee law.

NASHVILLE — A federal appeals court on Thursday dismissed a lawsuit challenging a controversial Tennessee law that restricts drag show performances in the state.

The decision by the 6th U.S. Court of Appeals overturned a lower court ruling that called the law an unconstitutional restriction on free speech and blocked its enforcement in part of the state. In Thursday’s ruling, the justices said that Memphis-based LGBTQ+ theater company Friends of George’s, which filed the original challenge last year, did not have the legal standing to litigate the law.

The group claimed the law would impact their livelihood due to the law’s overly broad language restricting artistic performances, especially given the group’s drag-centric themes. Friends of George’s had not yet issued a statement as of Thursday evening.

The justices struck a different tone than the lower court’s earlier ruling, instead emphasizing that the law was indeed specific enough, as the term “harmful to minors” was clear enough, they said, to absolve Friends of George’s of any concerns.

“Friends of George’s has not claimed that its performances are not of serious value to a 17-year-old. In fact, they claim the exact opposite. Their own witness, a member of the Friends of George’s board of directors, admitted that their shows ‘are certainly suitable’ for a 15-year-old and ‘definitely’ would have artistic value to a 17-year-old,” the ruling said.

In a statement released Thursday afternoon, Tennessee Attorney General Jonathan Skrmetti praised the ruling.

“Tennessee’s Adult Entertainment Act has been consistently misrepresented since its enactment,” Skrmetti wrote. “As a state filled with world-class artists and musicians, Tennessee respects the right to free speech. But as the Court noted, Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exposure of obscene material to children.”

The Tennessee Adult Entertainment Act (AEA), which won overwhelming support in the state’s Republican-dominated Legislature in 2023, faced equal opposition from a small portion of Democrats. Tennessee Rep. Aftyn Behn, D-Nashville and a frequent advocate for LGBTQ+ rights, released a statement Thursday.

“This ruling is absurd and violates the principles of small government,” she wrote. “It targets drag performers under the false pretense of protecting children, even though the court recognized that these performances do not harm minors.”

Federal Judge Thomas Parker of the Western District of Tennessee sided with Friends of George’s in June of last year, holding that the law “was enacted for the impermissible purpose of suppressing constitutionally protected free speech.”

Parker then noted the impossible position artists found themselves in when trying to determine the legitimacy of expressive performances based on vague terms.

“(The state) claims they believe (Friends of George’s) exhibits are not ‘harmful to minors’ under the AEA,” Parker said. “But this would require (Friends of George’s) to take a huge risk. It would have to eat the proverbial mushroom to find out if it’s poisonous.”

Two judges affirmed Thursday’s decision to dismiss the case: U.S. District Court Senior Judge Eugene Siler and U.S. District Court Judge John Nalbandian. U.S. District Court Judge Andre Mathis dissented, calling the law an “unconstitutional, content-based restriction on free speech.” He explicitly supported Parker’s lower-court ruling.

‘We are here to stay’: Why Air Resistance Is Critical in the US and Sometimes Safer Abroad

Anti-LGBTQ+ bills have flooded statehouses across the country as lawmakers in Republican-led states have adopted increasingly conservative policies in recent years. A record number of anti-LGBTQ bills were introduced last year, according to advocacy and civil rights groups.

At least 510 anti-LGBTQ+ bills were introduced in state legislatures in 2023, nearly double the number of bills filed in 2022, according to data from the American Civil Liberties Union. More have been filed in 2024, with the ACLU recording nearly 530 bills as of late June.

The wave of anti-LGBTQ+ bills has made many states less equitable and inclusive, according to advocacy groups and recent reports. Like bills introduced last year, lawmakers in 2024 have specifically targeted public education and health care facilities by restricting access to gender-affirming care for transgender youth and regulating school curricula.

The Human Rights Campaign — the nation’s largest gay rights organization — announced in April that Tennessee has passed more anti-LGBTQ+ laws than any other state since 2015. The organization reported at the time that the state had passed 21 laws, compared to 13 laws passed in both Arkansas and Florida.

Some states have tried to restrict drag performances, and two others, Tennessee and Montana, have already banned drag performances. So far in 2024, the ACLU has tracked at least 27 drag bans passed in the U.S.

The drag community and drag events across the country have also faced bomb threats, backlash, cancellations and hostile rhetoric in recent years. GLAAD, a nonprofit LGBTQ advocacy group, said in April 2023 that it had documented more than 160 incidents of anti-LGBTQ+ protests and threats against drag events since the beginning of 2022.

USA TODAY Network – Tennessee’s coverage of First Amendment issues is funded through a partnership between the Freedom Forum and Journalism Funding Partners.

Contact Angele Latham via email at [email protected] or at X at @angele_latham