Could Tennessee drag restrictions apply in private homes? How state argued before a federal appeals court

Could Tennessee's restrictions on drag performances apply to private homes?

Yes, the state of Tennessee argued before the 6th U.S. Circuit Court of Appeals as it seeks to reverse a lower court's ruling declaring the 2023 Adult Entertainment Act unconstitutional.

Shortly after Gov. Bill Lee signed the legislation into law, placing new restrictions on drag performances across the state, a federal judge in Memphis ruled it unconstitutional. But Attorney General Anthony Skrmetti filed an appeal in the case.

More: Federal judge rules against TN's drag law: 5 notable First Amendment arguments in decision

Now, almost a year since the law's passage, attorneys representing the state argued before a panel of judges at the 6th Circuit that the law could potentially be applied to private residences in Tennessee, and not just public places.

Associate Solicitor General Matthew Rice, arguing on behalf of the state, told the court on Feb. 1 that the law, which restricts "male and female impersonators" from performing in public spaces or where children could witness them if the performances could be deemed "harmful to minors," could be used to police drag performances in homes as well.

Mere minutes into the February hearing, U.S. Circuit Court Judge Andre Mathis asked Rice about the portion of the law that referred to viewing by minors, stating that it “seemed to cover just about everywhere that isn't public property.”

“We don't think it's everywhere that isn't public property,” Rice responded. “We think that the provision ‘could be viewed’ and that statutory provision refers to locations that the entertainment could permissibly be viewed by a minor.”

Mathis interrupted: “Why doesn't it cover the home?”

“Your honor, it theoretically could cover the home,” Rice said, adding that the state “(did) not think that that raises any constitutional problem.”

Attorneys representing the plaintiffs — Friends of Georges, a Memphis-based LGBTQ theatre group, and Blount Pride, a Blount County LGBTQ advocacy group — were shocked by the state’s assertion.

“The state conceded the very point of which Tennesseans should be most afraid: that this legislation is not intended to protect children,” said Brice Timmons, one of the attorneys representing the plaintiffs.  “It's intended to invade the most private parts of our lives and to take basic First Amendment rights away, not just from the general public but from parents as well. That should be deeply disturbing.”

The Attorney General's Office did not respond to multiple requests for comment sent on Wednesday and Thursday.

Broadening of law’s applicability is “concerning,” say attorneys

Rice told the court that the possibility of the law applying to private homes didn’t pose a constitutional issue because the plaintiffs hadn’t “actually shown or briefed why there's a unique First Amendment problem with respect to restrictions in the home,” and that there was no evidence that “adult-oriented shows” were “happening in homes and in front of children.”

“I would hope that’s not a common occurrence, and there is certainly no evidence in the record to show that this is a substantial number of applications of the act,” he said.

Timmons later said Rice’s statements run counter to what the law had been sold as when originally passed.

“The fact that the state has conceded that this could apply in the home is a shocking, especially given that they insisted that the intent of the law had nothing to do with private spaces and was only to address those places that were public or accessible to minors,” he said. “At oral argument they conceded that places accessible to minors could include private homes, without any limitations, and then their only response to why that shouldn't be viewed as problematic was to say, ‘Oh, just trust us.’”

Jennifer Safstrom, assistant clinical professor of law at Vanderbilt University and director of the Stanton Foundation First Amendment Clinic, said the state’s concession that the law could apply to private residences was “huge.”

“That concern was actually something that was raised and memorialized in the trial court's opinion (in June),” she said. “I think Mr. Rice's statement before the appellate court is just confirmation of that concern. And there is supposed to be narrow tailoring (of the law) in order to not restrict free expression, but I think in this case there is basically no tailoring at all. This concession doubles down on the state's perspective that this statute could apply to all public and private spaces.”

Safstrom said should the court rule in favor of the state, the law’s broad applicability would be “unfathomable.”

“Although the location is already overbroad … it's really hard to fathom just quite how unlimited the application of this law could potentially be,” she said.  “It's also extremely problematic. Because this could create a huge chilling effect on speech, and really make folks reluctant to engage in the activity, especially given what the potential penalties are.”

Timmons, who is representing the Tennessee plaintiffs as well as a drag bar in Florida with a very similar case against Florida’s drag law, said he never could have expected such cases as these to become a problem in one state, much less multiple.

“I've been a civil rights lawyer for almost a decade now, and I've done exclusively civil rights for the past four years,” he said. “And if you had told me in 2019 that I would be defending the right of drag queens to do theatre in multiple states, I would have laughed out loud.”

Federal judge pushed back on argument that the law can apply to private homes

Safstrom said the state's assertion that the Tennessee law could apply in the home is not a new one, and one that has in fact seen pushback in the courts.

U.S. District Court for the Western District of Tennessee Judge Thomas Parker, in his June ruling declaring the AEA as unconstitutional, denied the state’s attempt at redefining the law’s location restrictions in court to something far more narrow than written, calling it “alarmingly overbroad.”

“The Court has already explained its refusal to adopt (the state’s) reading of AEA’s Location Provision … as creating zones for adult cabaret entertainment ‘anywhere that imposes an age restriction,’” Parker wrote.  “The plain reading of the (location provision) is that the AEA criminally sanctions qualifying performers virtually anywhere—this includes private events at people’s homes or arguably even age-restricted venues.”

Parker said the language, which effectively regulated expression in the home, ran afoul of the First Amendment in numerous ways, including denying parents the right to exercise authority over their own household.

“Parental consent has been critical to the constitutionality of similar laws that restrict speech that is indecent but not obscene to adults,” he said.

Based on this and other factors, Parker noted, the the law's language does not meet the most basic requirement of laws that impact speech: that they be the "least restrictive means" possible in carrying out the law.

During debate over the law in the legislature, even Republicans could not fully agree on the lengths the location provision should go.

Rep. Chris Todd, R-Madison County, sponsored the bill in the House after attempting to cancel a drag show in Jackson. During floor debate in February, Todd suggested the drag show was inherently inappropriate for minors.

“It was certainly the intent of lawmakers years ago when they put restrictions on these things that minors not view these shows at all, whether it's indoors or outdoors,” Todd at one point told The Jackson Sun in 2022, calling drag performances "lewd behavior that is intending to sexualize kids."

"This needs to be an adults-only type of entertainment, in a setting minors cannot be affected by it at all," he said.

But Tennessee Senate Majority Leader Jack Johnson, R-Franklin, who co-sponsored the bill in the Senate, thought differently on the limitations, stating that the bill was not necessarily to ban drag performances, but to ban "sexually explicit content in public venues."

The 6th Circuit has not yet issued a ruling in the case.

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This article originally appeared on Nashville Tennessean: Drag restrictions in private homes? How Tennessee argued the point