What Happens Now That Tennessee’s Drag Ban Has Been Deemed Unconstitutional?

At 11:30 p.m. on Friday, June 2, attorney Brice Timmons was at an event in Memphis aptly named Big Gay Dance Party. He was de-stressing and commiserating with his co-counsel about the lack of action from a federal judge on their lawsuit against the state of Tennessee for its “drag ban.” They had hoped for a ruling before the weekend, but it hadn’t arrived yet — so, they resolved instead to celebrate the start of Pride Month.

Then, they checked their phones; the ruling had just dropped. “It was a ruling that that called the state on the carpet for every every aspect of the law’s unconstitutionality,” he tells Billboard over the phone. “The DJ just stopped the music, the announcer came up onto the stage and just yelled, ‘We won!’ Yeah, that was a high point of my career.”

Throughout his 70-page ruling, U.S. District Judge Thomas Parker found in favor of Timmons’ clients Friends of George’s, a Memphis-based LGBTQ theater company and drag troupe. The judge determined the Tennessee’s Adult Entertainment Act (or “AEA”) was an “unconstitutional restriction on the freedom of speech,” and permanently prevented District Attorney General Steven Mulroy of Shelby County, Tenn. — the defendant in the case — from enforcing the law.

While Timmons says that he is “very proud to have done this work,” he’s not all that surprised by the outcome. “This has not been very challenging legal analysis — it’s just a new generation of bigots trying the same old tricks,” he says.

Those “tricks” Timmons refers to had the state appealing to the interest of protecting children from explicit sexual content, claiming that the law was intended to be narrowly applied to only certain kinds of drag performances in public spaces.

But LGBTQ advocates and community members like Friends of George’s pointed out that the law’s intentional vagueness left the door open for the state to apply the law in a wide variety of ways — a fact that Judge Parker agreed with, saying in his ruling the AEA was “both unconstitutionally vague and substantially overbroad” in its scope.

When looking at the defense mounted by Tennessee, Timmons recognizes the tactics used. “Going into court and lying is a long standing legal strategy for governments that want to abuse their power,” he says. “It’s not that their legal theory is simply incorrect; it’s false. So they had to walk into court, to lie about why the law was passed, to lie about what the law says, and to lie about what the effects of the law will be.”

Timmons’ case, meanwhile, revolved largely around a number of First Amendment legal precedents set by the Supreme Court. In one case — Ashcroft v. ACLU — the Court upheld that a censorship law passed by Congress aimed at preventing children from accessing pornographic material on the internet was a violation of the First Amendment.

“Those laws were much more carefully drafted, and they did not have an a fundamentally inappropriate purpose. They weren’t targeting certain types of performers or certain types of websites,” he explains. “And still the Supreme Court said, ‘The state doesn’t get to insert itself into communicative decision making, unless it does so in just the most carefully, narrowly crafted way.'”

Since the ruling was officially released, the state has not officially announced an appeal — it has 30 days from the date of the ruling to file and appeal on the decision. But Tennessee Attorney General Jonathan Skrmetti told The New York Times in a statement not only that the state planned to appeal the decision, but that he feels the law “remains in effect outside of Shelby County.”

Timmons doesn’t mince his words when it comes to Skrmetti’s claim: “I think it’s the dumbest thing I’ve ever heard a lawyer say.” He points out that while Judge Parker offered a permanent enjoinment to the district attorney general of Shelby County and not the entirety of the state, he still ruled that the law itself was unconstitutional.

“That means there is no constitutional application for that law,” Timmons says. “If Jonathan Skrmetti wants to tell law enforcement officers in the state of Tennessee to go in and enforce an unconstitutional law, then I guess I’ll just have a cottage industry suing those law enforcement officers.”

As for other states where restrictions or bans on public drag performances have been passed, Timmons says that the Tennessee ruling is going to play a major factor. He knows this from experience — when he answers his phone for this interview, he’s just leaving court in Florida, where he argued as lead council against the state’s restrictive drag law on behalf of Hamburger Mary’s.

“[The Tennessee ruling] was the first thing that the judge here in Florida asked about during the hearing today,” he says. “It seems like judge Parker’s ruling is going to be, you know, a guide for how other courts will address this.”

Timmons says he’s already working with lawyers in Montana and Texas preparing to mount their own suits against their states’ respective drag bans, and that he and his team will “do everything we can to help them.” As for the impending threat of an appeal from Tennessee? “We’ve got a good team of lawyers, and nothing succeeds like success.”