No Surprise. The State's Appellate Counsel, In Friends of George's -- Just Got Shellacked -- At Oral Argument, In The Sixth Circuit This Morning.

This morning, the State of Tennessee didn't get one full sentence out, in its oral argument in the Sixth Circuit (to seek reversal of the Friends of George's complete win, at trial) -- before the panel members started offering pointed questions, to let it be known that this strikes it. . . as a First Amendment violative statute. On its face. Game effectively. . . over. [That's a link -- to the mp3 of this morning.]

The claim by Tennessee seems to be that no one has standing, to bring a "pre-enforcement" challenge -- dancers and entertainers at George's club must wait, and be arrested, before the statute can be challenged.

That's preposterous. A long line of US Supreme Court cases establishes that such a scheme allows any unconstitutional statute to chill and supress speech or expressive artistic conduct, simply via a "credible threat, or a reasonable fear of prosecution". That will not do. So, a video of expressive conduct that falls inside the supposed statute's criminal ambit. . . is per force enough to sue upon.

And wisely, Friends of George's showed some videos of its prior performances, at the club -- and under many a Supreme Court case -- that alone would have risked prosecution, and thus grants them standing. End of story on First Amendment challenges. The state loses.

Bafflingly, Tennessee citied Fieger, an attorney discipline case, to claim that a dancer must offer proof as conclusive (as an attorney suggesting on a radio broadcast, that appellate court judges ought to be violated anally, in order to show the statute is chilling protected speech or expression), in order to even get past the courthouse door.

Fieger really doesn't help the state, when the club produced actual videos at trial -- and the Fieger court ruled against Fieger at trial, when it heard the radio broadcast's audio-tape. Moreover, attorneys take certain oaths that limit their out of court criticisms of judges, before whom they are appearing -- thus accepting curtailed expressive freedom, so as not to bring the legal profession or the judiciary, into "disrepute".

So -- in sum, wholly UNLIKE a freedom to dance in an adult club, or at a Pride Party / parade. [No drag queen may ever be required to take an oath -- and agree to supress expressive freedom.] Here's a bit from oral argument:

. . .Sixth Circuit Judge: So what was the best case you have that has applied a “no standing” construction from a high court to figure out this court case?

Answer: Fieger. [But Fieger went the other way. Heh.]

[The actual law? See, e.g., FEC v. Akins, 524 U.S. 11, 30 (1998) (Scalia, J., dissenting); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347–48 (1936) (Brandeis, J., concurring)]. . . .

Now you know. The anti-drag statute is DOA, still -- in Tennessee, on First Amendment grounds. Onward.

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