Across the country, the free speech rights of drag performers are under attack. On April 1st, Tennessee will become the first state to restrict drag shows in public settings—the new law bans “male or female impersonators who provide entertainment that appeals to a prurient interest from performing in public spaces or in front of minors” (internal quotations omitted). Notably, the word “drag” is not included in the text of the statute—the law uses the more ambiguous term “male or female impersonators,” and classifies these entertainers as a form of adult cabaret, a category that also includes go-go dancers and strippers. Given the constitutional rights at issue with these bans, courts should strike down these new laws for restricting free speech and for being impermissibly vague.
As a form of performance art, drag shows generally fall within the category of expressive conduct that warrants protection under the First Amendment. The Tennessee drag ban attempts to associate drag shows with “obscenity,” a category of speech that is not protected by the First Amendment. Under the standard established by Miller v. California, 413 U.S. 15 (1973), obscene material must fit three distinct criteria:
- “an average person, applying community standards, must find the work as a whole appeals to the prurient interest …
- the work must show, in a patently offensive way, sexual conduct specifically defined by the law …
- the work, taken as a whole, must lack serious literary, artistic, political or scientific value[.]”
While some drag shows contain sexual content, the art of gender performance is not inherently sexual, and drag is often used as a medium to critique gender norms, power structures, and other social injustices. As such, few drag shows meet all three criteria of Miller, meaning that it would be inappropriate to categorize drag shows as inherently obscene. Accordingly, drag shows deserve the free speech protections guaranteed by the First Amendment.
In addition to the flawed charge of obscenity, the Tennessee drag law fails to adhere to any standard for reasonable restrictions on free speech. The Supreme Court has generally held that “states may impose restrictions on the time, place, and manner in which speech occurs, so long as such limitations are content-neutral.” In light of this standard, Tennessee’s drag ban is overly broad. It prohibits “at all times, male or female impersonation that it deems harmful to children from any public property and from many private venues” (internal quotations omitted). Further, the Tennessee law is not content-neutral, as a targeted ban on “male and female impersonators” is a form of discrimination based on the content of the expressive conduct. The state has a legitimate interest in restricting access to sexually explicit content, but given that many drag shows do not contain such content, blanket bans on any show involving drag queens unduly limit artistic expression. Thus, the Tennessee ban is not narrowly tailored, which means that the restrictions on expressive conduct are likely unconstitutional.
Because state legislatures recognize that drag restrictions implicate the right to free speech, they have drafted these statutes using “subjective language, which will leave local law enforcement and judges to decide what is and isn’t allowed.” Kathy Sinback, executive director of the ACLU of Tennessee, noted in an interview with the New York Times that the law was likely “passed [ ] intentionally to try to chill and prevent people from doing drag.” In a way, the vagueness of such laws seem to be intentional; by creating ambiguous restrictions, drag performers are uncertain of when they may or may not be violating the law, and the looming threat of criminal prosecution chills their ability to exercise their First Amendment rights. The Tennessee law creates a regulatory scheme that does not adequately notify people of what conduct is actually criminal, and thus could be declared void for vagueness.
Given the historical significance and cultural importance of drag performance in the LGBTQ+ community, any drag ban should be subject to a high level of scrutiny by courts. When the state attempts to limit the cultural expression of an oppressed group, courts should take extra care to ensure that the regulation does not improperly limit the free speech rights of such minority groups. The Tennessee law does not meet this standard, and thus should be struck down.
 Lil Kalish, Tennessee Has Banned Drag Performances In Public, And Other States Are Considering Similar Bans, BuzzFeed News (Mar. 2, 2023), https://www.buzzfeednews.com/article/lilkalish/tennessee-governor-signs-drag-ban-into-law [https://perma.cc/A9RT-DB3P] [https://web.archive.org/web/20230324174429/https://www.buzzfeednews.com/article/lilkalish/tennessee-governor-signs-drag-ban-into-law].
 Kimberlee Kruesi and Jeff McMillan, As Tennessee, Others Target Drag Shows, Many Wonder: Why?, AP News (Mar. 2, 2023), https://apnews.com/article/drag-queens-tennessee-bill-legislation-3ed2ddd0e8231819ade5d0c8b9f4c30a [https://perma.cc/H55R-CYNJ] [https://web.archive.org/web/20230324174736/https://apnews.com/article/drag-queens-tennessee-bill-legislation-3ed2ddd0e8231819ade5d0c8b9f4c30a].
 Mark Satta, Can the First Amendment Protect Drag Performances?, YES! Magazine (Mar. 10, 2023), https://www.yesmagazine.org/social-justice/2023/03/10/first-amendment-drag-performances [https://perma.cc/7VMR-GGAE] [https://web.archive.org/web/20230324174857/https://www.yesmagazine.org/social-justice/2023/03/10/first-amendment-drag-performances].
 Kathleen Carlson, Drag Show Laws, The First Amendment Encyclopedia at Middle Tennessee State University (Feb. 2023), https://www.mtsu.edu/first-amendment/article/2185/drag-show-laws [https://perma.cc/8KPQ-FPWC] [https://web.archive.org/web/20230324175342/https://www.mtsu.edu/first-amendment/article/2185/drag-show-laws].
 Satta, supra note 3.
 Kaleigh Rogers, Republicans Lawmakers Are Trying To Ban Drag. First They Have To Define It., FiveThirtyEight (Mar. 14, 2023), https://fivethirtyeight.com/features/republicans-lawmakers-are-trying-to-ban-drag-first-they-have-to-define-it/ [https://perma.cc/7MEK-SBXD] [https://web.archive.org/web/20230324175604/https://fivethirtyeight.com/features/republicans-lawmakers-are-trying-to-ban-drag-first-they-have-to-define-it/].
 Rick Rojas et al., Tennessee Law Limiting ‘Cabaret’ Shows Raises Uncertainty About Drag Events, N.Y. Times (Mar. 5, 2023), https://www.nytimes.com/2023/03/05/us/tennessee-law-drag-shows.html [https://perma.cc/Z8KP-5C2P] [https://web.archive.org/web/20230324175906/https://www.nytimes.com/2023/03/05/us/tennessee-law-drag-shows.html].