CINCINATTI, Ohio – Late last week, a divided panel from the U.S. Court of Appeals for the Sixth Circuit held that Friends of George (FOG), a theater company in Memphis, lacked standing to challenge Tennessee’s “Adult Entertainment Act” (AEA), which imposes new regulations on drag shows performed in the state.

Writing for the majority, Judge John B. Nalbandian found that FOG had failed to show the organization was at risk of having the law enforced against them. Noting that the law’s definition of “harmful to minors” can be applied only to works that “taken as whole lacks serious literary, artistic, political or scientific values for minors,” Nalbandian wrote “FOG has not alleged that its performances lack serious value for a 17-year-old.”

“In fact, it insists the exact opposite,” Nalbandian wrote. “Its own witness, a member of FOG’s board, conceded that its shows ‘are definitely appropriate’ for a 15-year-old and would ‘absolutely’ have artistic value for a 17-year-old. According to the witness, FOG tries ‘to stick around the PG-13 area in writing,’ rather than get ‘too risqué.’” By its own testimony, FOG has failed to show any intention to even arguably violate the AEA.”

Further, Nalbandian asserted, if FOG and the district court’s interpretation of the statute and description of FOG’s conduct were correct, then “FOG has been breaking obscenity law for years.”

“Before the AEA, it was already a crime to admit minors to view sexually explicit shows that are ‘harmful to minors’ under the same statutory standard,” Nalbandian wrote. “Yet despite selling tickets without distinguishing between adults or minors, neither FOG nor its performers have ever been charged with violating Tennessee obscenity laws or even threatened with prosecution.”

To hear Nalbandian tell it, the only way the AEA would ever be enforced against FOG is if law enforcement screwed up.

Nalbandian conceded that “at the pre-enforcement stage, FOG need not prove conclusively that its intended course of conduct violates the AEA but only that it is arguably proscribed by the statute,” but found FOG couldn’t meet that lower standard, either.

“On the other hand, a party alleging that its conduct could be proscribed by the challenged statute cannot rely on an argument that the statute might be misconstrued by law enforcement,” Nalbandian wrote. “And that’s essentially what FOG is asking for here.”

Some media outlets have reported that the Sixth Circuit’s decision effectively means drag shows are now illegal in Tennessee. This isn’t true, fortunately. What the decision does mean, at least for now, is that drag shows in the state will be treated very much like pornography – age-restricted and potentially subject to things like zoning laws and the pernicious “secondary effects” doctrine that informs them.

As the dissent by Judge Andre B. Mathis in last week’s decision by the Sixth Circuit noted, there are many problems with the majority’s decision, not the least of which is the court decided to substantially narrow the scope AEA on behalf of the Tennessee legislature, something appellate courts aren’t really supposed to do. Mathis also disagreed with the majority on the question of whether FOG had established standing to sue.

“Did FOG establish at trial that they intend to engage in adult cabaret entertainment in public or in a place that minors can view the performances?” Mathis asked, rhetorically. “Yes. FOG produces ‘adult-oriented performances’ that feature male and female impersonators. And FOG’s performers could also be considered ‘entertainers’ because they perform simulated sex acts.

“FOG’s evidence also showed that its productions are held in locations where they ‘could be viewed by a person who is not an adult,’” Mathis added. “Due to the Evergreen Theater’s general admissions policy, FOG does not distinguish between adult and child ticket holders, and it does not verify the age of attendees. Thus, a ‘handful of minors’ are already known to attend its shows.”

As to the majority’s view of the statute’s scope, Mathis called out the majority for narrowing the statute on the fly while considering the issue of standing.

“To be sure, we have relied on a state court’s narrowing construction of a state statute in determining whether a plaintiff has sustained an injury in fact,” Mathis wrote. “But Tennessee courts have not adopted a narrowing construction of the AEA. And it is improper for this court to adopt a narrowing construction of the AEA when assessing standing.”

While the majority never reached the merits of FOG’s challenge, having tossed the case based on a lack of standing, because Mathis disagreed on standing, he took his analysis further, finding that strict scrutiny was the appropriate standard for review – and that the statute couldn’t survive such, just as the district court held in issuing the now vacated injunction preventing enforcement of the AEA.

“The district court found that the AEA is a content-based regulation of speech and expression,” Mathis wrote. “In doing so, the district court did not err.”

Mathis waved off the argument from Steven Mulroy, the District Attorney General for Shelby County, that the AEA merely imposed a “time, place, or manner restriction” on adult entertainment, as the court has allowed many times in other contexts.

“True, expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions,“ Mathis conceded. “Courts uphold such restrictions ‘only if they are ‘justified without reference to the content of the regulated speech.’ But the AEA did not create an adult-only zone. Instead, it criminalizes the performance of adult cabaret entertainment any place where a minor could view the performance. Because Mulroy has not identified the location of these purported adult-only zones and because he has failed to justify the restriction without referencing the content of the expression, the AEA is not a valid time, place, or manner restriction.”

Mathis also rejected the notion that the secondary effects doctrine can be applied with respect to regulations imposed under the AEA.

“One must consider whether: (1) the ‘predominate concerns’ motivating the [AEA] ‘were with the secondary effects of adult [speech], and not with the content of adult [speech]’; and (2) that a ‘connection [exists] between the speech regulated by the [AEA] and the secondary effects that motivated’ its adoption,” Mathis wrote. “Mulroy cannot satisfy either consideration.”

“Contrary to Mulroy’s assertions, the legislative record does not reflect that sexual-exploitation crimes against children were a ‘predominate concern’ of the Tennessee legislature,” Mathis wrote. “The statutory text does not mention, or create an inference, that sexual-exploitation crimes were the main concern of the legislature in passing the AEA. The legislative history bolsters this conclusion. Only one person mentioned a concern related to sexual exploitation: Ms. Starbuck, who testified as a witness at a committee hearing. The legislators did not discuss sexual exploitation or sexual assaults at all. Supporters of the AEA bill instead focused on the expressive content. And neither the text of the AEA nor the legislative record makes a connection between the conduct the AEA seeks to regulate and the risk of sexual exploitation.”

The bottom line, Mathis found, is the AEA “is a content-based restriction on speech.”

“It is not a time, place, or manner restriction,” Mathis wrote. “And the secondary-effects doctrine does not apply. Therefore, the AEA is subject to strict scrutiny.”

As to why the AEA cannot survive strict scrutiny in Mathis’ view, the judge argued that some of the “strongest evidence that the AEA is not narrowly tailored comes from Mulroy’s attempts to rewrite the Act.”

“The AEA says that adult cabaret entertainment ‘means adult-oriented performances that are harmful to minors,’” Mathis noted. “And under Tennessee law, a minor is anyone under the age of 18. But Mulroy argues that, through Davis-Kidd, the AEA limits the harmful-to-minors definition to content that lacks value to a reasonable 17-year-old minor. Also, the AEA prohibits adult cabaret entertainment ‘in a location’ that ‘could be viewed by a’ minor. Mulroy tries to narrow this rather broad language to mean that such entertainment can be performed only ‘in private, age-restricted venues.’ Additionally, Mulroy seeks to write a scienter requirement into the AEA that the plain text of the law does not support.”

Click here to read the full text of both the majority’s decision and Mathis’ dissent.

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