Drag Shows Are Free Speech

Efforts by GOP legislators to impose absurd and onerous regulations on them violate the Constitution.

Three drag queens, one of whom is dressed in a long, red, feathered robe
Constantine Manos / Magnum

Gun homicides and car accidents are the leading causes of youth death. American children confront challenges as varied as bullying, poverty, gangs, sexual abuse, mental illness, and drug addiction. A state legislator hoping to protect kids might reasonably focus on any number of issues. Drag shows, those improbable culture-war flash points, are not among them. Yet Republican legislators in at least seven states are pushing bills to restrict shows where performers may deviate from traditional gender norms.

The most sweeping and objectionable proposals are not mere efforts to deprive drag shows of taxpayer funding or to keep them out of public primary schools. Rather, they would classify drag shows (as the sponsoring legislators variously define them) as akin to pornography. They would redefine any venue hosting such a show as an adult business, or try to shield even teenagers from drag in a society where almost all of them have regular access to the internet. Should any such proposal pass into law––at this early stage, their prospects are uncertain and may vary from state to state—the free speech and association rights of private venues, performers, artists, and willing audiences will all be infringed upon. And for what?

These proposals are needless, excessive, and unconstitutional––so much so that more than one would belong in a Hall of Fame for legislative overreach that is at odds with freedom of speech.

Parents expose young kids to all sorts of things that strike me as age inappropriate, including the most hypersexualized drag shows that circulate via aggregators such as Libs of TikTok, which are outliers. Meanwhile, mountains of inappropriate movies, TV shows, video games, and internet content exceed the relative molehill of inappropriate drag performances (which would be just as inappropriate if cisgender women performed the same actions), whether measured by the ease of accessibility to kids or how many total kids see them.

Abstractly, the question of how many people need to be harmed to justify a new state law can be a difficult one. But I can find no evidence that any child has been harmed as the result of a drag performance. One suspects that some GOP legislators see drag shows not as especially big problems so much as big opportunities because a faction of their constituents zealously dislike them.

Regardless of motivation, any Constitution-respecting American should reject a law that infringes on free speech or artistic expression if the matter in question has zero proven victims. Some supporters of anti-drag laws maintain that drag shows have the effect of “grooming” kids into LGBTQ activism or an LGBTQ lifestyle. But that claim is speculative and unproven––and even if it were true that drag shows influence how kids think about gender, neither art nor free speech can survive if it is constitutionally unprotected anytime it influences how some of the children who witness it think. Of course, once drag-queen story hours for children weirdly became both progressive acculturation events and culture-war battlegrounds, attempted interventions in statehouses was inevitable. Perhaps it was also inevitable that many proposals would go further than is legal. Neither faction is committed to butting out when private undertakings offend its sensibilities. In this matter the Republicans are in the wrong.

In Nebraska, where the age of majority is 19, a law proposed by State Senator Dave Murman would prohibit anyone 18 or younger from being present at a drag show, which it defines expansively, as follows: First, the performance’s “main aspect” is “a performer which exhibits a gender identity that is different than the performer's gender assigned at birth using clothing, makeup, or other physical markers.” (I’d have thought a conservative would say that one’s sex is recorded at birth, not that one’s gender is assigned, but set that aside.) Second, “the performer sings, lip syncs, dances, or otherwise performs before an audience for entertainment.”

By that definition, an 18-year-old would be legally prohibited from attending a performance of the Broadway musical Mrs. Doubtfire, a comedy set by Eddie Izzard, a lecture on being trans by Caitlyn Jenner, or a rock concert by a female-and-costumed Beatles tribute band.

The proposed Nebraska law goes on: “Any person nineteen years of age or older who knowingly brings an individual under nineteen years of age to a drag show shall be guilty of a Class I misdemeanor.” That standard would have made criminals of numerous World War II officers, what with the ubiquity of drag shows performed by and for troops overseas during that era. (Here’s Ronald Reagan introducing a dramatization of one of those shows circa 1943.) I had hoped to question Murman about the breadth of entertainment that his proposal would constrain and the conduct that it would criminalize, but a spokesperson declined an interview invitation while passing along the prepared statement “I will always uphold my promise to enact policies that reflect Judeo-Christian values and defend the innocence of children.”

But what 18-year-old’s innocence would be ruined by Mrs. Doubtfire? A law can prohibit showing some expressive material to minors that would be legal for adults without violating the First Amendment, but it’s hard to imagine Nebraska’s expansive definition passing an obscenity test.

Democratic State Senator Megan Hunt is opposing the bill. A spokesperson in her office said that they intend to fight it but that defeating it may be an uphill battle that requires engagement from the public because Republicans enjoy a supermajority in the state legislature. Neither the bill nor an attempt by Hunt to indefinitely delay it has yet been debated on the floor.

In Arkansas, one bill would amend the definition of adult-oriented businesses to include drag performances. That bill is less egregious than its Nebraska analogue in that only drag shows “intended to appeal to the prurient interest” are affected, but it’s more restrictive in that it doesn’t just affect performances in which drag is “the main element”––even one extra in drag could trigger the law. It is hardly novel for legislators to seek to protect minors from performances that are “prurient,” which is to say, that appeal to a lustful interest in sexual stimulation or gratification, but it’s striking to draft a law that shields kids from ostensibly prurient performances only when the performers are cross-dressing. The approach seems to subject genderqueer people to unequal treatment under the law and suggests animus against them, failing another civil-rights test.

Similarly speech-infringing and chilling proposals are circulating in a number of other states. In Arizona, S.B. 1030 would classify and regulate establishments that conduct drag shows in the same way as adult arcades, massage parlors, and strip clubs. It defines a drag performer as “a person who dresses in clothing and uses makeup and other physical markers opposite of the person’s gender at birth to exaggerate gender signifiers and roles and engages in singing, dancing, or a monologue or skit in order to entertain an audience.” Under that definition, Rod Stewart’s upcoming concert at the arena where the Phoenix Suns play could conceivably result in its reclassification as an 18-and-up venue––while not generally thought of as a drag act, he has frequently styled himself in ways that incorporate normatively feminine looks.

Texas Monthly reported on an effort by State Representative Jared Patterson to treat venues that host “drag performances” as “sexually oriented businesses,” noting that if the bill passes, “a rock club or a community theater that doesn’t offer sexually explicit performances could find itself governed by the same rules” as strip clubs and porn theaters. “Given the stakes, those venues may well be unlikely to offer trans performers—even if they’re just strumming guitars or sitting behind drum kits—the opportunity to play.”

That analysis seems reasonable to me, and demonstrates how the bill would obviously discourage artistic expression and would presumptively make it disproportionately harder for trans performers to get work.

The Tennessean reported last month that State Senate Majority Leader Jack Johnson is sponsoring legislation, S.B. 3, that is written broadly enough to conceivably encompass the actions in a bawdy sketch like the one that Donald Trump and Rudy Giuliani performed in drag together back in 2000 if it was performed in a place where a child could see it. The effect of that proposal, too, would be to chill all manner of speech and artistic expression for cis and trans performers who depart from the traditional gender norms of their sex.

Similar bills are under consideration in Missouri and Montana. One wonders if more are coming. Even if none passes, it is notable that legislators in so many states are singling out drag, especially in ways that raise significant constitutional problems. And should any bill pass aiming to restrict drag performances anywhere a child might see one, legal challenges will follow. As the UCLA law professor Eugene Volokh, a First Amendment expert, told me in a phone interview, the precedent in the 1975 Supreme Court case Erznoznik v. City of Jacksonville would be relevant. In that case, a Jacksonville, Florida, ordinance made it a punishable offense for a drive-in movie theater to show films containing nudity when the screen was visible from the street. The Supreme Court struck the ordinance down on First Amendment grounds.

“Much that we encounter offends our esthetic, if not our political and moral, sensibilities,” it ruled. “Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.”

The Court went on to address concerns about children. “Appellee maintains that even though it cannot prohibit the display of films containing nudity to adults, the present ordinance is a reasonable means of protecting minors from this type of visual influence,” the majority opinion states. The opinion points out that “the ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness.” The ruling concludes that  “speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.”

In my own estimation, the state’s ability to control the flow of information to minors should be at its very weakest in cases where parents or guardians are in favor of exposing their children to the art or expression in question. And most young children who attend drag shows of any sort do so because their parents chose to take them. In an essay where the journalist and pioneering proponent of gay equality Andrew Sullivan both celebrates many types of drag performances and laments as regressive progressivism “the idea that a drag queen—rather than, say, a firefighter or a pilot or a tennis player—is somehow an ideal role model for young gay children,” he points out that drag-queen story hour is

a voluntary activity. It’s not compulsory. Parents can choose to take their kids or not. (The introduction of this into public schools where kids cannot opt out and parents aren’t told is another matter entirely.)

Either you believe in parents’ rights, or you don’t. And I’m happy to leave it up to parents—and no one else. The post-liberal right, we have come to understand, only believes in parents’ rights if the parents are social conservatives.

Of course, the legislation discussed above goes far beyond trying to unconstitutionally ban drag-queen story hours, similarly infringing on a wide array of performative events, even though, as the ACLU of Nebraska’s Jane Seu put it in a statement, “Families have a First Amendment right to attend these events and performers and venues have a right to offer them.” Free-speech claims are often denigrated by neo-puritan factions on the right and left these days, but they remain an essential bulwark protecting minority communities from would-be censors. If the GOP improbably succeeds in overcoming those claims, its Pyrrhic crusade against drag will triumph at the expense of individual liberty and expressive rights for everyone.