The lawsuit on Tennessee’s controversial ban on adult entertainment will remain intact after a refusal to hear the case from the United States Sixth Circuit Court of Appeals.
A statement from the Tennessee Attorney General Jonathan Skrmetti said the court unanimously decided to “reject a full circuit review of the Friends of George’s, Inc v. Steven Mulroy.”
Friends of George’s has not said how this will affect any their productions moving forward, but they only allowed audience members 18 and up to attend their last show in August.
According to the court order filed on September 20th, the court received a petition to hear the case again. All judges in the court received the petition, yet they all declined to review it as a full court.
“No judge has requested a vote on the suggestion for rehearing,” the order said. “Therefore, the petition is denied. Judge [Andre] Mathis would grant rehearing for the reasons stated in is dissent.”
In July the court reversed the U.S. District Court of the Western District’s decision to halt the enforcement of the controversial law. According to Friends of George’s the court decided in a 2-to-1 ruling that they lacked standing, which led to the lawsuit being dismissed.
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.
Skrmetti said he was glad the Court of Appeals declined to rehear the case as his office “fought hard to defend Tennessee’s Adult Entertainment Act.”
“Tennessee, home to an incredible community of performers and songwriters, respects the awesome importance of the First Amendment,” Skrmetti said. “But the First Amendment allows states to restrict adult entertainment to adult-only spaces.”
The law stated that these “adult cabaret performances” were “harmful to minors.” It made “adult cabaret performances” on public property or “in a location where the adult cabaret performance could be viewed by a person who is not an adult” a criminal offense.
During the hearing, 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 the district attorney’s office couldn’t enforce the public property clause, as the theater group could not challenge that part.
