Last Friday, a judge in Knoxville, Tennessee, prohibited a prosecutor who threatened to bring criminal charges against drag performers at a nearby college from doing so.
The prosecutor had planned to target the performers using a new state law that, among other things, lists “male or female impersonators” alongside “topless dancers, go-go dancers, exotic dancers, [and] strippers” as forms of speech subject to tight restrictions.
Judge Ronnie Greer, the author of that decision, is a Bush appointee and the second federal judge appointed by Republicans to issue such an order in Tennessee. Greer relied heavily on Judge Thomas Parker’s opinion in Friends of George’s v. Mulroy, an opinion shielding drag artists in Memphis. Parker is a Trump judge.
The question of whether a state can ban drag shows should not be controversial in a nation governed by the First Amendment. A state legislature may not ban standup comedy. Nor could it ban musical theater, kabuki, noh, koothu, or mime. Dressing in clothes conventionally worn by the opposite sex and satirizing gender norms is no less a protected form of expression than any other form of theatre.
And, to their credit, the courts have thus far agreed with this assessment of the Constitution.
According to the Movement Advancement Project, a pro-LGBTQ think tank, two states, Tennessee and Montana, have enacted laws explicitly targeting drag performers. Four others — Florida, Texas, Arkansas, and North Dakota — have laws targeting “adult” performances that can be used to target drag shows and that in some cases have been used to do so.
But these laws have not fared well in court. In addition to the two federal court decisions blocking Tennessee’s anti-drag law, federal courts blocked similar laws in Montana, Florida, and Texas. For now, at least, the First Amendment is holding firm.
That said, there’s no guarantee that judges will continue to protect free speech as these cases advance to higher (and…
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