Let me let you in on a little fantasy of mine: every once in a while, I like to imagine finding myself meeting the person who came up with the term "global warming." Why? So I can punish that person. Severely. See, what a term like "global warming"…
The drag shows will go on. At least for now.
On June 2, 2023, Judge Thomas Parker, a Trump-appointed federal district court judge in western Tennessee, ruled that Tennessee’s “Adult Entertainment Act” violated the First Amendment’s free speech protection.
The act had been passed by the Tennessee Legislature and signed into law by Tennessee Gov. Bill Lee in March 2023. The law gained national attention because it appeared designed to limit drag performances through regulation of “male and female impersonators.”
Parker provided several grounds for concluding that the law is unconstitutional. Using my experience as a First Amendment scholar, below I explain how Judge Parker reached those conclusions and what they mean for Tennessee’s law.
The First Amendment of the U.S. Constitution protects, among other things, free speech.
As Parker noted at the beginning of his opinion, “Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.”
Freedom of speech protects more than just speech, in the colloquial sense. It also protects many other ways that people express themselves, such as by waving a flag, marching in a parade or dancing.
Drag shows typically consist of various forms of protected speech, like dancing, acting, lip-syncing, telling jokes and wearing elaborate outfits designed to send messages. Thus, any law seeking to limit drag performances raises important questions about whether that law violates the First Amendment.
Not all speech is protected by the First Amendment. Freedom of speech does not include the right to engage in, for example, perjury, defamation or threats of violence.
Freedom of speech also doesn’t protect the narrow category of legally defined obscenity. According to the Supreme Court, something is legally obscene only if, applying contemporary community standards, a reasonable person would find that the work, when viewed holistically, appeals to prurient interests, contains patently offensive content, and lacks any serious literary, artistic, political or scientific value.
Thus, as Parker noted, “there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” and the law imposes “an exceptionally high standard” for what counts as legally obscene.
The clearest example of sexually explicit material that does not receive First Amendment protection is child pornography. But the precise boundaries of what counts as legal obscenity are vague. Many kinds of sexually explicit material are not deemed legally obscene because it has often been relatively easy for litigants to convince modern courts that the material in question has serious literary, artistic, political or scientific value.
Tennessee’s Adult Entertainment Act would have made it a crime “to perform adult cabaret entertainment” on “public property” or anywhere it “could be viewed by a person who is not an adult.”
The act defined “adult cabaret entertainment” to include performances by “male or female impersonators” that are deemed “harmful to minors.” The act’s definition of “harmful to minors” came from existing Tennessee legal code. That code was based on the U.S. Supreme Court’s criteria for legal obscenity.
However, that Tennessee legal code modified the standard of legal obscenity so that it applied specifically “for minors.” So, for example, rather than designating as obscene certain speech that lacked “serious literary, artistic, political or scientific value,” full stop, Tennessee’s standard applied to certain speech that lacked “serious literary, artistic, political or scientific value for minors.”
On March 31, Parker temporarily blocked the law from taking effect. His final ruling on June 2 permanently barred enforcement of it in Tennessee’s Shelby County on the grounds that it was an unconstitutional violation of the First Amendment. The reason his ruling applied only to Shelby County is that the sole defendant at that stage in the case was Shelby County’s district attorney, whose authority to enforce the law is limited to that county.
Parker determined that the law targeted more than just legally obscene speech; it also targeted speech protected under the First Amendment.
The Supreme Court has set very high standards for when regulation of protected speech can discriminate based on the speech’s content or viewpoint.
Content discrimination restricts speech based on subject matter. Viewpoint discrimination restricts speech based on the position taken. So, for example, a ban on speech about elections would discriminate based on content, while a ban on speech that is negative about a particular political candidate would discriminate based on viewpoint.
Parker concluded that the Tennessee law discriminated based on both the speech’s content and its viewpoint.
He concluded that it discriminated based on content because it specifically targets “adult-oriented performances that are harmful to minors” and discriminates based on viewpoint because it specifically targets the speech of “male and female impersonators.”
To make the point that the law discriminated based on viewpoint, Parker used an example of two Elvis impersonators dressed in revealing but nonobscene outfits. If one performer were male and the other female, the law would have made it more likely that the female Elvis impersonator would be subject to prosecution than the male Elvis impersonator. That discriminates against certain expressions of gender identity.
Laws that discriminate based on viewpoint are subject to the highest standard of judicial review, known as strict scrutiny, which requires laws to be “narrowly tailored” and “well defined.” Parker concluded that the law was neither. On this basis, he also concluded that it failed to meet the high standard of review and was unconstitutional.
He noted instead that on any plausible reading of the law, it “criminally sanctions qualifying performers virtually anywhere,” including those performing in “private events at people’s homes or arguably even age-restricted venues.” He also wrote that the law appeared designed for the “impermissible purpose” of “chilling constitutionally-protected speech.”
A vague law can violate a person’s rights because it can be hard to tell if one is breaking the law.
Parker found the “harmful to minors” standard unconstitutionally vague because what is harmful for different minors can change drastically depending on the minor. Consider, for example, the differences between a 5-year-old and a 17-year-old. He also concluded that the law was overbroad because it covered, or could reasonably be interpreted to cover, many types of protected speech.
Parker’s ruling barred enforcement of the law only in Shelby County. However, his reasoning regarding the unconstitutionality of the law would apply equally well to any challenge brought against the law anywhere in Tennessee. Parker’s reasoning may also prove persuasive to judges assessing other anti-drag laws in other states.
Reps. Marjorie Taylor Greene (R-GA) and Lauren Boebert (R-CO) claim an internal FBI document shows President Joe Biden accepted a bribe.
House Republicans have been demanding access to an FD-1023 form they believe proves corruption allegations against the president and his son, and the two lawmakers were allowed to view the document in a secure location inside the U.S. Capitol Thursday – and they then briefed reporters on its contents.
"Reading this form today shows the pure distinction, this information, this source that came forward, it's a paid informant by the FBI," Greene said. "This has nothing to do with [Rudy] Giuliani, this has nothing to do with the information he brought forward in 2020, it's totally separate and it's extremely credible because he's a paid informant."
In fact, the FBI routinely pays informants after they testify in a trial.
Greene wrote down notes after viewing the document, which she said shows the owner of the Ukrainian energy company Burisma Holdings told the informant about a bribery scheme involving the Bidens that involved getting the then vice president to pressure Ukraine to fire prosecutor Viktor Shokin, who was investigating the energy company.
"[The owner] also said that he paid $5 million and he paid $5 million to another Biden," Green said, summarizing the informant's claims, "and it was all a bribery to get Shokin fired and end the investigation into Burisma. He also told the informant this was common practice in Russia and Ukraine. It's common practice, it's part of business there, that's how their culture works, that they will pay bribery money in order to get business deals done."
Biden has claimed he was carrying out official U.S. foreign policy in pressuring Ukraine as vice president to fire the prosecutor, who had come under heavy criticism from the international community and eventually resigned in 2016 after the country's then-president complained he was taking too long to clean up corruption.
Boebert also spoke out about the FBI document. "The information is so damning," she told Benny Johnson on the right-wing Benny Show.
\u201cI just read the FBI\u2019s FD-1023 form implicating Joe Biden in a political bribery pay-to-play scheme.\n\nHere\u2019s what the American people deserve to know.\u201d— Rep. Marjorie Taylor Greene\ud83c\uddfa\ud83c\uddf8 (@Rep. Marjorie Taylor Greene\ud83c\uddfa\ud83c\uddf8) 1686242362
\u201cCongresswoman @LaurenBoebert reacts to contents of incriminating FD1023 form involving Biden Family corruption immediately after viewing it in SCIF:\n\n"The American People need to see what is in here...the information is so damning\u2014 not just to Hunter Biden to Joe Biden\u2014 'The Big\u2026\u201d— Benny Johnson (@Benny Johnson) 1686242325
Fringe members of the House Republican conference were so furious with Speaker Kevin McCarthy that they now consider it payback time, New York Magazine's Ben Jacobs wrote Thursday.
This week, Republicans rebelled.
There was the concern that when McCarthy allowed a rule change to allow a single member to trigger a vote that could remove him from power, the hard right would harness that opportunity. Instead, they seized control of the House to block a pro-gas-stove bill.
Republicans had begun a campaign to save their old gas stoves after a study said having them in a home could cause increased health problems for children with asthma – and aConsumer Product Safety Commission member suggested that products be made safer, and any products that can't should be banned.
But even a strident war against President Joe Biden's administration takes a back seat to the internal war between the right and the far right.
"They were furious that McCarthy had bucked them and their demands for deep spending cuts in order to get Democratic support" in the Debt Ceiling deal, wrote Jacobs. "The result was that the business of the House ground to a halt, with rebels such as [Rep] Matt Gaetz (R-FL) and [Rep.] Lauren Boebert (R-CO) tweeting, 'We hold the floor.'
"After all, without these hard-right Republicans, McCarthy had no majority, and things weren’t going to get any easier in the future. 'We have a short majority,' said [Rep.] Kelly Armstrong (R-ND), an ally of McCarthy’s, of the speaker’s four-vote margin. 'We’re about to very possibly lose two members in the very near future' — a reference to both the pending resignation of Chris Stewart from Utah, to take care of his ailing wife, and the indictment of New York’s George Santos."
So, the House is on hold, with no votes that can be held, and no legislation that can be passed.
Their demands are that McCarthy be further constrained from making any other bipartisan deals. That means the upcoming Farm Bill reauthorization could ultimately stop funding the subsidies given to farmers and ranchers that keep American food affordable.
“There was an agreement in January, and it was violated in the debt ceiling bill,” Jacobs cited Rep. Ken Buck (R-CO), who complained to reporters.
“The Indians who sold Manhattan got a better deal,” whined Gaetz to Steve Bannon on his video blog.
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