On Monday night, the attempt by the town of Portland, Tennessee, to ban drag shows came to an end. For months, the town’s aldermen have been searching for a way to regulate drag shows out of existence. But the First Amendment got in their way.
It all started in August, when performers with Elite Productions put on a drag show at Envy Restaurant Bar & Grill in downtown Portland. The show was sold out, and the performers went on to hold several more successful performances.
Though popular with the public, the show became a target for the Portland board of aldermen, which has spent much of the past several months trying to find a way to ban drag shows.
In September, board members introduced an ordinance that sought to classify drag shows as “adult cabaret,” which the town described as a form of “adult-oriented business” that “may be erotic [in] nature.” The ordinance would have allowed Portland to zone the drag show into oblivion.
The problem with the proposed ordinance is that Elite’s shows aren’t erotic – they include fully-clothed impersonators singing, dancing and performing comedy bits. (The aldermen admitted that they had never been to the show.)
Male and female impersonation is a time-honored tradition in artistic works, going back to Shakespeare’s “Twelfth Night” and “Merchant of Venice,” “Yentl,” “Tootsie,” the Academy-award-winning “Victor Victoria,” and many more.
As the ACLU of Tennessee, on behalf of Elite Productions, explained to the town in multiple letters, female and male impersonation is a form of artistic expression protected by the First Amendment. It is not inherently sexual or erotic in nature, so Elite Production’s drag shows cannot be regulated like an adult-oriented business.
Nonetheless, the aldermen hired legal counsel at taxpayer expense to advance their quest. They drafted new language that again attempted to define male or female impersonation as inherently erotic in order to regulate it as adult entertainment. The new ordinance also added language about the “secondary effects” of adult-oriented businesses, such as an impact on property values in the area, to justify regulating drag performances.
True adult-oriented businesses may indeed have secondary effects and courts have held that government can impose some reasonable restrictions on adult entertainment. However, Elite Productions’ shows are not erotic in nature. Not one of the studies cited by the board of aldermen connects the type of performance that Elite stages to any secondary effect that would justify such regulation.
In fact, Portland’s own high school has a tradition of an annual “womanless beauty pageant” fundraiser in which male students dress in gowns and crowns. Portland’s American Cancer Society chapter has also held “womanless beauty pageants” in the past. There has been no evidence presented that any of these performances have increased crime or brought property values down.
In the end, there was just no way around the First Amendment. The version of the that ultimately passed on Monday night mirrors the definition of “adult cabaret” found in Tennessee state law, which clarifies that adult cabarets are businesses that offer erotic entertainment with the performers exposing certain anatomical areas. Since those criteria do not apply to the Elite shows, our clients are free to perform without government interference.
As the town’s aldermen learned, just because they don’t like a particular kind of speech does not give them the power to shut it down.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.