(CN) — The state of Tennessee asked the Sixth Circuit on Thursday to reverse a lower court’s block of law that bans “adult-oriented performances” deemed harmful to kids from taking place in public or anywhere a minor might view them.
While the Adult Entertainment Act, passed in 2023, doesn't specifically name drag shows, it lists examples that include male or female impersonators, in addition to topless dancers, go-go dancers, exotic dancers and strippers.
Within weeks of the law being signed by Republican Tennessee Governor Mike Lee, it was challenged by Memphis-based theater company Friends of George’s, which claims its all-ages draw shows could be subject to felony charges under the new law.
The theater company, which says it makes content for the LGBTQ+ community and its friends and allies, scored a legal victory when U.S. District Judge Thomas Parker ruled that the law was unconstitutional.
The Trump-appointed judge said in his ruling that the Adult Entertainment Act was overbroad in its effects on free speech and that an injunction halting the law was warranted.
“The court understands that the overbreadth doctrine is strong medicine. But a debilitated patient should not forgo medicine on account of its strength. This statute—which is barely two pages long—reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. The virulence of the AEA’s overbreadth chills a large amount of speech, and calls for this strong medicine,” Parker wrote.
Associate Solicitor General Matthew Rice represented the state on its appeal to the Sixth Circuit and asked the court during oral arguments to reverse the lower court’s decision.
“Tennessee’s elected representatives passed a law that requires sexual performances that are harmful to minors to occur in adult-only zones,” Rice said. “That law comports with the constitution.”
U.S. Circuit Judge Andre Mathis, a Biden appointee, asked Rice whether act's location restriction clause could be applied to a private residence.
“Why doesn’t that cover the home?” Mathis asked.
“Theoretically, it could cover the home,” Rice replied.
Rice said that possibility doesn't pose an issue to the law, however, because the plaintiff failed to show there were unique constitutional problems for restrictions in the home. He also argued there is no evidence that numerous adult-oriented shows are taking place in homes and in front of children.
“I would hope that’s not a common occurrence, and there is certainly no evidence in the record to show that this is a substantial number of applications of the act,” Rice said.
Representing the theater group during oral arguments were attorneys Brice Timmons and Melissa Stewart from the Memphis-based Donati Law firm.
“The Adult Entertainment Act is unconstitutional for at least two reasons: First, it is a criminal statute that targets speech based on both the content and identity of the speaker. And second, because the state did not choose the least restrictive means of regulating that protected speech,” Stewart said.
Mathis asked Stewart a similar question about where the law could apply.
Stewart responded by saying that, as the lower federal court noted, the locations to which the law applies are “virtually unlimited.”
“The state is asking this court to rewrite that clause, to apply to establishments that card at the door, and create these adult-only zones,” said Stewart.
Joining the panel were Trump-appointed U.S. Circuit Judge John Nalbandian and U.S. Circuit Judge Eugene Siler, who is a George H.W. Bush nominee.
No timetable was issued for a ruling on the case.
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