Friday, August 4, 2023
Mark Satta, Wayne State University, is publishing Shantay Drag Stays: Anti-Drag Laws Violate the First Amendment in the Georgetown Journal of Gender and the Law. Here is the abstract.
So far in 2023, at least twenty states have introduced bills aimed at limiting, eliminating, or otherwise suppressing drag performances. Several of those bills have turned into state laws. One of those laws has already been found to violate the First Amendment. This article explains why virtually any law aimed specifically at restricting, suppressing, or banning drag performances violates the First Amendment. The key reasons for this are as follows. First, drag performances are expressive conduct protected by the First Amendment. Second, drag performances generally do not fall into any uncovered category of speech, such as obscenity. Third, drag performances express viewpoints. Fourth, the Supreme Court has set an extremely high standard for permitting viewpoint discrimination—even for speech not covered by the First Amendment. Laws aimed at restricting drag performances do not meet this high standard because, among other reasons, such laws are not precisely tailored. Thus, laws that pick out drag performances for restriction over and above other forms of covered (or even uncovered) speech violate the First Amendment. After offering these arguments, this article examines how these First Amendment facts impact anti-drag laws in Tennessee, Arkansas, and Montana. These three case studies provide further evidence for the conclusion that anti-drag laws are generally unconstitutional by examining issues of overbreadth and vagueness, with an emphasis on how vague and overbroad anti-drag laws like these impermissibly chill the speech and expression of drag performers and of trans people.
Download the article from SSRN at the link.