Drag shows are a form of entertainment in which female impersonators dress in elaborate costumes and makeup and perform singing or dancing. Some drag shows include comedy, skits and interaction with the audience. Drag shows have been depicted and popularized in several television shows and films, such as “Ru-Paul’s Drag Race” and the movie “The Birdcage.”
Beginning in 2022, legislators in at least 10 states introduced bills to restrict, in a host of ways, entertainment and performances by female (and male) impersonators, raising First Amendment questions.
Live entertainment is protected under the First Amendment as a form of free expression. But sponsors of the bills contend the performances are obscene or not appropriate for children.
Proposed laws seek to ban or restrict drag shows
The proposed laws attempt to regulate drag shows as adult-oriented businesses, protect minors from them, ban them on public property, or forbid using government funds to pay for them.
One bill sponsor in Tennessee characterized his legislation to criminalize such performances in public places as a “common-sense safety bill for children.”
First Amendment protects expressive conduct
Under the First Amendment, the government cannot restrict speech, including expressive conduct, simply because it finds it offensive or doesn’t like the content, said Alan Garfield, distinguished professor at Delaware Law School. For example, the Supreme Court has ruled that some forms of nude dancing express erotic messages that are worthy of First Amendment protection. (Drag shows do not involve nude dancing, but rather are characterized by costumes and performances expressing a different gender.)
If a law is based on the content of speech or expression, courts will strictly scrutinize it to make sure it doesn’t run afoul of First Amendment protections. Garfield said the strict scrutiny standard is nearly always fatal to the law in question.
It has not yet been determined by a court that performances by female or male impersonators are expressive conduct protected under the First Amendment, but scholars say they most likely are.
“Drag performances consist of music, dance and theater, all of which have long been considered expression under the First Amendment,” said Marjorie Heins, a First Amendment lawyer and author of “Not in Front of the Children: ‘Indecency,’ Censorship and the Innocence of Youth.”
In addition, some performers as well as members of the LGBTQ+ community view drag as a positive expression about belonging to that community.
Law proponents argue performances are obscene
Proponents of the drag show restrictions argue, on the other hand, that some performances by the female or male impersonators can be obscene or should not be performed in front of children.
The courts have upheld some restrictions on expressive conduct. In the nude dancing context, for example, the Supreme Court found it was constitutionally permissible to require nude dancers in a strip club to wear G-strings and pasties under a state law prohibiting public nudity. The coverings didn’t materially hamper expression and supported a legitimate government objective.
Obscenity gets no protection at all under the First Amendment, Garfield said. For speech to be not merely pornographic but obscene, it must meet three legal criteria that the Supreme Court set out in 1973 case of Miller v. California.
- First, an average person, applying community standards, must find the work as a whole appeals to the prurient interest.
- Second, the work must show, in a patently offensive way, sexual conduct specifically defined by the law.
- And third, the work, taken as a whole, must lack serious literary, artistic, political or scientific value.
The answers to the three Miller test questions will depend on the facts of each particular case, and all must be answered “yes” for a law targeting obscenity to stand.
Heins said even though the Supreme Court set out the Miller test, some would argue that the criteria are vague. Generally, a law cannot be so vague that a person can’t determine how to comply with it.
Limiting drag shows based on protecting children
The best argument for restricting drag shows may be on grounds that they’re inappropriate for children, Garfield said.
As Heins put it, minors do have First Amendment rights, but they are less than adults’ First Amendment rights, so material can be banned for them that can’t be banned for adults.
But adults cannot be restricted to only that expression that’s suitable for children, and that’s what could happen under a law that banned adult entertainment on public property or where minors may be present, she said. A law that bans both protected and unprotected expression is considered overbroad and unconstitutional.
Not all government efforts to protect minors have met First Amendment’s requirements, Garfield said. He cited a 1975 Supreme Court case involving a state law banning drive-in movie theaters from showing nudity, to protect minors from inadvertently seeing it as they drove by. The court said not all nudity shown at a drive-in theater was inappropriate for minors, and the law was struck down.
Other harmful to minors laws have been upheld by federal courts, including laws regulating a bookstore’s display of material that is considered obscene. Such laws have fared far less successfully on the internet, as federal courts have invalidated many as infringing too much on expressive speech rights of adults.
Courts enjoin states from enforcing drag show laws
Some courts have enjoined states from enforcing their new drag show laws. For example, in October 2023, the 11th U.S. Circuit Court of Appeals upheld a lower court’s order stopping Florida’s law from being enforced statewide. The U.S. Supreme Court in November 2023 refused to narrow the court’s ruling to only apply to the Orlando restaurant that had challenged the law. Three justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, said they would have granted the state’s request.
In June 2023, a federal judge in Tennessee said that state’s law was “unconstitutionally vague and substantially overbroad” and encouraged “discriminatory enforcement,” barring it from being enforced.
This article was published in February 2023 and updated on Nov. 17, 2023.