The Able USDC Judge Thomas L. Parker Enters A TRO, In Memphis, Against Tennessee's Unconstitutional Expression-Suppressing "No Drag Shows" Law.

This is gratifying (my prior backgrounder, here). It is still true that the vast majority of USDC Judges nationwide are fair and impartial, and simply, and competently interpret and enforce the law as written. I do call more than a few out, for their partisan / MAGA lunacy here -- so it is important to highlight USDC jurists getting it precisely. . . correct, too.

The law in Tennessee is facially discriminatory. To save it, the Tennessee authorities argue that it goes no further than existing laws on strip clubs (which, if we believe Tennessee authorities, raises the fair question: "why did you pass what you claim is. . . a redundant law?").

Well, except that those existing laws penalize the owners of the club -- never the dancers. This law, almost regardless of venue (if a child might be anywhere in the area) purports to criminalize the drag performers themselves. . . for. . . performing. That is core expressive content based regulation. And the GOP legislator who introduced the bill, is on public record as having intended to use it (as, when, and if passed) to prevent Pride Parades, state-wide -- without regard to the dozens of floats that might have exactly zero drag queens on board.

It would be hard to make out a clearer case of content-based restriction on expression, by the state -- than that. So a full halt on the law taking effect today, is clearly in order (from the full opinion of USDC Judge Parker, signed and published to the docket on Friday evening):

. . .[T]he Statute, which imposes criminal sanctions on those who violate its restrictions on expressive speech, will take effect tomorrow, April 1, 2023. And not only is the Statute vague -- as the Court further discusses below -- but so is the State’s enforcement mechanism for it. At the risk of chilling speech because of the Statute’s vagueness, the Court will not let the enforcement mechanism’s ambiguity prevent Plaintiff’s suit here presents a reasonable risk that both the Governor and Attorney General may investigate and criminally prosecute, Plaintiff for its performances. See United States v. Stevens, 559 U.S. 460, (2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”); Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (“The State has not suggested that the newly enacted [speech restriction] law will not be enforced, and we see no reason to assume otherwise. . . Further, the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.”). Because the Statute still has not gone into effect, granting a TRO will grant Plaintiff relief by preserving the status quo. . . .

At this point, the Court finds that the Statute is likely both vague and overly-broad. As discussed above, Plaintiff argued during the hearing that Section 1 of the Statute tracks the same language from the state’s existing regulations on adult-oriented establishments as codified in Tennessee Code Annotated § 7-51-1401. Compare Tenn. Code Ann. § 7-51-1401 (“‘Adult cabaret’ means a cabaret that features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers[.]”) with (ECF No. 19-1 at PageID 93 (“[Adult cabaret entertainment] means adult-oriented performances that are harmful to minors . . . and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers[.]”)).

To the Parties’ knowledge, the same language in § 7-51-1401 has not been challenged for its constitutionality in federal court. Plaintiff argues that while § 7-51-1401’s broad language is limited by subsections of that statute, chief among them that the performance must be limited within the boundaries of the adult oriented businesses, here the Statute reaches the conduct of performers virtually anywhere. Section 2 of the Statute makes it “an offense for a person to perform adult cabaret entertainment,” either “(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.” (ECF No. 19-1 at PageID 93.)

Plaintiff argues that this language could mean just about anywhere. The Court agrees. What exactly is a location on public property or a “location where an adult cabaret entertainment could be viewed by a person who is not an adult”? Does a citizen’s private residence count?

How about a camping ground at a national park? What if a minor browsing the worldwide web from a public library views an “adult cabaret performance”? Ultimately, the Statute’s broad language clashes with the First Amendment’s tight constraints. . . .

Now you know -- onward, smiling. [And to be clear, the second graphic at right is about an attempt, over a year ago, by a GOP Southeastern Tennessee legislator -- to have the State House there both "censure and admonish" a reporter, by resolution. . . for reporting facts. The NABJ promptly buried him. My understanding is that he is out of his seat; retired-by-the-voters.] So, sanity makes. . . a comeback, there. And to be certain any claimed fear of shooters has nothing to do with this Xtio-fascists' would-be law.