US appeals court upholds controversial Tennessee law

The Tennessee Adult Entertainment Act, the controversial law restricting drag performances, will remain in effect thanks to a ruling by a federal appeals court on Thursday that dismissed a lawsuit challenging the law.

The decision by the 6th U.S. Court of Appeals reverses a lower court ruling that found the law to be an unconstitutional restriction on free speech and blocked its enforcement in part of the state.

In Thursday’s ruling, judges ruled that Memphis-based LGBTQ+ theater company Friends of George’s, which filed the original complaint last year, does not have the legal standing to sue over the law.

The group claimed the law would impact their livelihood as it contains overly broad language that restricts artistic performances, especially given the group’s drag themes.

The justices struck a different tone than the lower court’s earlier ruling, instead emphasizing that the law was indeed specific enough, as the term “harmful to minors” was clear enough, they said, to absolve Friends of George’s of any concerns.

“Friends of George’s has not claimed that its performances are not of serious value to a 17-year-old. In fact, it claims the exact opposite. Its own witness, a member of the Friends of George’s board of directors, admitted that its shows ‘are certainly suitable’ for a 15-year-old and ‘definitely’ would have artistic value to a 17-year-old,” the ruling said.

The theater company said in a message on social media on Thursday evening that it was disappointed with the verdict.

“Rather than addressing the constitutionality of Tennessee’s drag ban, today’s ruling leaves us and thousands of others in the LGBTQ+ community in a dangerous limbo without clear answers about how this ban will be enforced and by whom,” Friends of George’s wrote. “The only thing that is clear about this law is that it is firmly rooted in hate and defies the will of the majority of Tennesseans.”

Tennessee Attorney General Jonathan Skrmetti praised the ruling in a statement released Thursday afternoon.

“Tennessee’s Adult Entertainment Act has been consistently misrepresented since its enactment,” Skrmetti wrote. “As a state filled with world-class artists and musicians, Tennessee respects the right to free speech. But as the Court noted, Tennessee’s ‘harmful to minors’ standard is constitutionally sound and Tennessee can absolutely prohibit the exposure of obscene material to children.”

The Adult Entertainment Act, which won overwhelming support in Tennessee’s Republican-dominated Legislature in 2023, faced equal opposition from the small portion of Democrats. Tennessee Rep. Aftyn Behn, D-Nashville and a frequent advocate for LGBTQ+ rights, released a statement Thursday.

“This ruling is absurd and violates the principles of small government,” she wrote. “It targets drag performers under the false pretense of protecting children, even though the court recognized that these performances do not harm minors.”

Federal Judge Thomas Parker of the Western District of Tennessee sided with Friends of George’s in June of last year, arguing that the law was “enacted for the impermissible purpose of suppressing constitutionally protected free speech.”

Parker then noted the impossible position artists found themselves in when trying to determine the legitimacy of expressive performances based on vague terms.

“(The state) claims they believe (Friends of George’s) exhibits are not ‘harmful to minors’ under the AEA,” Parker said. “But this would require (Friends of George’s) to take a huge risk. It would have to eat the proverbial mushroom to find out if it’s poisonous.”

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Two justices affirmed Thursday’s decision to dismiss the case: U.S. District Court Senior Judge Eugene Siler and U.S. District Court Judge John Nalbandian, while U.S. District Court Judge Andre Mathis dissented, calling the law an “unconstitutional, content-based restriction on free speech” and explicitly supporting Parker’s lower court ruling.

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