Federal Appeals Court Upholds Tennessee Ban Targeting Drag Shows for Minors
A three-judge panel from the 6th U.S. Circuit Court of Appeals recently confirmed a Tennessee law that restricts children from attending drag shows. The law, part of Tennessee’s Adult Entertainment Act passed in 2023, makes it illegal to perform adult cabaret entertainment in venues where minors could potentially be present. The legislation defines such entertainment broadly, including acts by topless dancers, go-go dancers, exotic performers, and male or female impersonators.
Court History and Lower Court Intervention
Previously, a federal judge in the U.S. District Court for the Western District of Tennessee had halted the law’s enforcement in Shelby County—home to Memphis—citing concerns that it imposed an unconstitutional limitation on free speech under the First Amendment. A local LGBT theatre company, Friends of George’s, which stages drag shows outside of typical bar and club settings, benefitted from that order because most of its performances take place in Shelby County.
The 6th Circuit Decision
The recent ruling by the appellate panel reversed the district court’s decision. Authored by Judge John Nalbandian, the opinion—with Judge Edward Siler concurring and Judge Andre Mathis dissenting—argues that Friends of George’s does not have the proper standing to contest the law. Notably, Nalbandian pointed to testimony from a witness for Friends of George’s who claimed that the shows are “definitely appropriate” for teenagers, noting the company’s deliberate effort to maintain a PG-13 standard.
The judge emphasized that Friends of George’s could not show a credible threat of enforcement since their testimony indicated no actual intent to contravene the law. Moreover, he stressed that concerns over potential misinterpretation by law enforcement do not establish a sufficient injury for judicial review. In his view, any fear of false arrest or prosecution—absent a clearly impending threat—does not rise to the level required for a federal court to intervene.
Dissenting Opinion
In dissent, Judge Mathis described the law as an unconstitutional, content-based restriction on speech. He argued that the possibility of future harm satisfies the injury requirement if there is a substantial risk that such harm will eventually occur, meaning that waiting for the state to enforce the law before challenging its validity is unnecessary.
Statements from Tennessee Officials and the Affected Organization
Tennessee Attorney General Jonathan Skrmetti defended the law by stating that the measure has often been misrepresented and that the state, known for its vibrant artistic community, upholds free expression while also protecting minors from exposure to obscene material. According to Skrmetti, the appeals court simply reaffirmed what the statute clearly states.
In response to the ruling, Friends of George’s expressed deep disappointment. In a public statement, the organization warned that the decision leaves many in the LGBTQ+ community unsure about how and by whom the law will be enforced. They also characterized the law as “firmly rooted in hate” and indicated that they are evaluating next steps while preparing for an upcoming production scheduled to open soon.
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