Friends of George’s, the LGBTQ theater company and nonprofit organization, has promised to appeal the 6th Circuit Court of the United States’ ruling on their recent lawsuit regarding Tennessee’s drag ban.
Last week the court reversed the U.S. District Court of the Western District’s decision to halt the enforcement of the controversial law. According to the organization the court decided in a 2-to-1 ruling that they lacked standing, which led to the lawsuit being dismissed.
Melissa Stewart, attorney for the organization, said they strongly disagree with the ruling, and the court failed to address the constitutionality of the law.
“Instead, it decided this case on procedural grounds, holding that Friends of George’s does not have standing to bring this case,” Stewart said in a statement. “As Judge [Andre] Mathis’ dissent makes clear, this decision is contrary to the 6th Circuit and Supreme Court case law.”
Judge Mathis wrote in his dissent that part of Tennessee’s Adult Entertainment Act (AEA) is an “unconstitutional content-based restriction on speech.”
“The freedom to convey one’s ideas — no matter how unpopular — was seen as inalienable to the human experience, and the Framers of our Federal Constitution believed such freedom was ‘essential if vigorous enlightenment was ever to triumph over slothful ignorance,’” Mathis said.
Mathis went on to analyze the language of the Adult Entertainment Act which makes performing “adult cabaret entertainment” on public property or in a place that a child can view it a crime. These performances are defined as those that feature “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”
The dissent went on to say that Friends of George’s has the right to sue since the law could stop them from doing their shows. The Tennessee Attorney General’s office argued that the company hasn’t been harmed by the law and can’t sue. However, Mathis argued they don’t have to be in trouble to challenge the law.
Friends of George’s was required to show that they planned to continue performances and that these productions were protected by the First Amendment. The company showed videos of their past shows which included satire of The View where performers “describ[ed] sexual acts including intercourse and masturbation,” and another video showed a group of actors satirizing a song by Meatloaf while portraying sexual acts.
While the First Amendment protects both words and actions, the “expressive conduct” must convey a clear message and be understood by the audience, which Friends of George’s productions do.
Though the district court ruled that the Adult Entertainment Act was unconstitutional as it limited free speech, Mathis argued they made a mistake by saying that Mulroy couldn’t enforce the public property clause, as the theater group could not challenge that part.
“The district court erred in enjoining Mulroy from enforcing the public-property provision of the AEA because FOG lacked standing to challenge that provision,” he said. “But the district court did not err in enjoining Mulroy from enforcing Tenn. Code Ann. § 7-51-1407(c)(1)(B) because that provision is a content-based restriction on speech that fails strict scrutiny. Thus, the district court did not abuse its discretion by prohibiting Mulroy from enforcing that unconstitutional law in Shelby County.”
As the decision leaves the law in limbo, Friends of George’s said this leaves “thousands of drag performers as well as transgender and nonbinary people across Tennessee [to] face terrifying uncertainty about the legal ramifications they could face outside the confines of 18+ or 21+ performance venues.”
Friends of George’s is preparing to host their latest production Death Drop at Hotel Le’George on August 2nd; however, they will only allow people ages 18 and up to enter.
