Late Friday, about four hours before Tennessee’s first-in-the-nation law restricting drag performances was set to go into effect, a federal court intervened.
U.S. District Court Judge Thomas L. Parker, a Trump appointee, issued an order blocking Tennessee’s law for 14 days. Parker made clear that the temporary injunction may be extended due to concerns about the law and the damaging effects it could have on drag performers, including the Memphis drag theater troupe Friends of George’s that challenged the law.
“If Tennessee wishes to exercise its police power in restricting speech it considers obscene, it must do so within the constraints and framework of the United States Constitution,” Parker wrote. “The Court finds that, as it stands, the record here suggests that when the legislature passed this Statute, it missed the mark.”
The decision is the latest in a series of fast-moving events that have changed the climate for LGBTQ individuals living in Tennessee. In March, state lawmakers passed the law that prompted Friday’s injunction. It added “male and female impersonators” to a list of performers who cannot be seen by those under the age of 18 in Tennessee. Those accused of such an offense more than once would face felony charges and jail time.
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Brice Timmons, the civil rights lawyer who represented Friends of George’s in the lawsuit, spoke with TIME late last week about what prompted the complaint, why the law represents a serious threat to drag performers, and core American ideals. He regards Tennessee’s law as a warning sign about the state of American democracy and a telling indicator of what uber-conservative politicians would like to accomplish in the near future. Among the possibilities Timmons illuminated that no other person I’ve spoken with about the law has: convicting drag performers of felony crimes, many but not all of whom are LGBTQ individuals, would grow the already over 470,000 residents, nearly 10% of adults in Tennessee, banned from voting.
What follows is our conversation edited for clarity and length.
Why do you think that all of this is happening now?
The playbook for turning a liberal democracy into a totalitarian state is to take an angry vocal minority who feels disenfranchised, whether they really are disenfranchised or not, then give them an outgroup to blame all of their troubles on.
The very first books that Nazis burned? Studies about sex and gender. So I personally believe that attacking drag performers is particularly insidious, because even within the LGBT community, it’s a relatively small group of people. And because it is this sort of flamboyant and silly art form, it makes the issue seem a little flamboyant and silly as well.
Read More: You Don’t Silence a Drag Queen
When you pair that with the legislation that passed at almost exactly the same time, you can see that there’s a pattern here of targeting people who are gender and sexuality nonconforming. They’re a group that some people, especially people in the rural South, simply don’t understand. And they are, historically, very, very politically weak.
If they had targeted gay white men, this game would be over. But by picking this tiny group within a group, they can achieve some goals
Let’s return to why Friends of George’s sued.
Because, in significant part, their mission has always overtly included getting drag out of the closet.
This is an art form, and we should be treating it like a serious art form. And we should do it in a way that people who don’t hang out in bars and nightclubs can view it. They also wanted to prove that it could be a family-friendly kind of thing.
Everybody involved with Friends of George’s is either a performer or someone who actively puts on the show. So these are all people who risk prosecution under this law. And this is an organization that I think really felt a profound need to stand up to this legislation because it’s designed to falsely say your art form hurts children.
This is very much the Anita Bryant playbook. These people sound more and more like the John Birch Society every day. The conspiracy theories, the [claim that] an evil cabal of child-molesting devil worshippers quietly and secretly run the world. This stuff is just completely insane.
But it’s not new. Anytime you want to demonize somebody, the quickest way to do it is by saying that they are coming for your children. We saw it directed at Hillary Clinton and Joe Biden and every other major figure in the Democratic Party, to the point that somebody walked into a pizza parlor with an AR-15 because they thought that there was a child-trafficking ring in the basement.
Are you saying that the same conspiracy theories that undergird QAnon are involved in Tennessee’s law restricting drag performances?
Yes. It’s important to remember that these sort of power mongers within the Conservative Union – that’s what I call the far right – their first victims are their followers.
What do you mean?
Because they have to convince these people to believe in a wholly separate reality. Before they can persuade them to do something absurd, what is the quote? “Those who can make you believe absurdities can make you commit atrocities.”
They’re taking a group of people, people who in many cases are operating at an information deficit due to years of effort at defunding our education systems, creating parallel education systems that are not founded in critical thought, that reject science, and otherwise depriving people of access to knowledge – more importantly, depriving them [of the] necessary skill sets to understand that knowledge – then telling that group of people all of your problems are because of other people.
And the more embroidered you make these claims, the more their followers get caught up in it and the more their perceptions of the world begin to deviate from actual objective reality.
Bringing it back around to this lawsuit, that is why the First Amendment is so crucial. It is maybe the only thing that can save us from this nosedive out of democracy.
Why is the First Amendment so critical in holding back the rising tide of policies and practices that you and some others have described as totalitarian or fascist?
Critical-thinking, sensible, rational people, people with a desire to live in a better world, we have to be able to tell stories about how that can happen. And when you start burning books, limiting forms of expression, art, that tend to cause people to question what they’ve been taught – and drag certainly is one of those things, it is subversive by nature – while simultaneously allowing conspiracy theories to run amok on Facebook, what you do is you deprive those people who have an aspirational view of the future of the tools necessary to argue their case. And you leave in place the tools necessary for reactionaries to continue to undermine public discourse and give the leaders of those groups more and more ability to turn the world into whatever it is they want.
All of this can happen while having their followers believe that they remain entrenched in some form of war against a group of people who, by the time this is all over, are not merely out of power or even less powerful than [when] they started, they are probably being completely oppressed.
Returning to a state in which people are constantly oppressed and persecuted for merely being different – that is a necessary component of totalitarian regimes.
Those are big claims. When I started reading the lawsuit, I, of course, noticed it was filed under what’s known as the Klu Klux Klan Act, the Civil Rights Act of 1871. Please explain how Tennessee’s new drag restrictions violate this law?
When we talk about the Klu Klux Klan Act, we’re usually talking about the Civil Rights Act of 1871, section 42 USC Section 1985, not 1983. But 1985 is the section that relates to conspiracies between private actors and public actors to deprive people of civil rights through private action, whereas 1983 is about deprivations of civil rights brought about by government actors. The first was put in place to target the Klan. The second was put in place to target state governments, local governments that were in place, obviously following the Civil War, who created the Black Codes.
I try to be really careful about comparisons between the struggles of groups. But are you saying that Tennessee’s drag-restrictions law approaches the level of infringement on people’s basic rights that the Black Codes did?
I don’t know that the two comparisons are terribly useful.
The goal [of the law’s supporters] here is to get a foot in the door for two reasons. The first is to start discriminating against LGBT people in law again. Literally just a few years ago, we were looking at cases involving the First Amendment’s freedom of religion clauses, the Free Exercise Clause being used to target affirmative efforts to end discrimination against LGBT people. That’s been accomplished, to a significant significant part. Now, we’re seeing a much more radical effort to return to a time when the government could overtly use discriminatory legislation to target this specific group of people.
The second purpose of this legislation is to introduce the idea, to set a precedent, that a legislature has the right to decide that something is obscene because it is, in their minds, consistent with whatever set of prevailing values they have. And we know in this case that these are values that are grounded in an extremely right-wing, narrow view of evangelical Christianity.
Since the 1970s, we have defined it [obscenity], very narrowly. If they can push the window just a little bit, then that is laying the groundwork for them to begin defining it more and more and more broadly. What they would eventually like to do is to challenge the Miller Test for obscenity, the test that says it’s not obscene unless it is specifically sexual in nature and appeals primarily to the prurient interest, that it is not fit for essentially, for anyone to see and that it is completely without any redeeming quality, scientifically, politically, socially, artistically.
The Miller test makes it hard to declare something obscene, because we don’t want this subjective idea of what is or isn’t OK to control our public discourse. We don’t want that decided by a party that takes power and then changes the rules about what you can and can’t say or express in some way, in public.
Am I understanding correctly, the core legal grounds for this suit are that Tennessee lawmakers and those who enforce it have violated or will violate the First Amendment rights of drag performers, in particular the performers with Friends of George’s?
And you’re arguing that this imposes an obligation to parent or “protect” other people’s children on the performers?
I haven’t really framed it that way.
How would you frame it?
It deprives parents of the ability to parent their own children the way they see fit.
People who passed this law absolutely do not care about what I’m about to say. But imagine that you are a gay couple who want to share their cultural history with their kids through drag performances in public parks, with drag queens that are family friendly, drag queens in ball gowns, dressed like Dolly Parton. This law calls into question whether that could happen without somebody committing a crime. And anybody who tells you that the law isn’t intended to do that, that’s a lie.
All you need to look at is the fact that every [June] Pride festival but one in the state of Tennessee has canceled all of their drag performances. That’s what’s happened already.
You need only look at the statements of the bill sponsor Representative Chris Todd, saying that drag itself was per se child abuse. When asked, “How do you know that the drag performances at Jackson, [Tenn.] Pride were going to be harmful for children or inappropriate for minors?” he said, it is designed, designed, “to groom and recruit children into that lifestyle.” What he’s really saying is that somebody might see a drag performance and think, I have questions about my own sexuality and gender identity.
Many people will ask, don’t governments have the authority to prohibit minors from buying, seeing, or engaging in certain things?
When we talk about the First Amendment standard being slightly different for what is or isn’t appropriate for minors, the Supreme Court has been very clear, you can’t nerf the world to the point that we’re tailoring everything to what’s OK for toddlers or 3-year-olds.
The laws you can pass are laws that age-restrict things that would be inappropriate for somebody who is 17 years and 364 days old.
So what Chris Todd is worried about, what this law purports to restrict, or at least according to its own sponsor, is “risk.” It is designed to abate the risks that exist in his mind that a senior in high school might see a drag performance and think, Oh, maybe I’m different too. Maybe my ideas that I’ve been told about gender and sexuality, maybe those don’t fit with how I feel.
The goal here is to shove everybody back in the closet: drag performers, that senior in high school, everyone who has questions or other ideas about their own gender identity or sexuality, or just how they want to present themselves.
I’m going to continue to play devil’s advocate here for a moment. There are people who will say you are overreacting, that your description of what can happen if art forms like drag are restricted is overwrought, too alarmist, and therefore, untrue.
Well, first of all, I’m not a politician. I’m a civil rights attorney. And my job is to make sure that those people in the mushy middle never have to worry about these issues. Because it is people like my clients, who are at sort of the fringes, who are most vulnerable.
Where we are now is the place where you stop totalitarian encroachment. It wasn’t the middle-of-the-road people that pushed for our existing free-speech laws. Without the people at the fringes fighting for their rights, the internet could not have existed, or certainly not as we know it. The Supreme Court decided in 1997 that indecency provisions were unconstitutional. And it did so predicated on not what ordinary, mainstream society wanted to discuss. Those decisions were predicated on litigation brought by pornographers.
We don’t draw the line of acceptable speech at what the 25th percentile of the mainstream likes. And that’s how we ensure that everybody who’s in that middle gets to say what they want. That exists for them because we draw the line right at the edge of what we think is acceptable and we don’t make too many value judgments about the quality of somebody’s speech.
Where have courts drawn the line?
[They] say, OK, what is so bad that there is no possible way to justify it?
Item No. 1, child pornography. And it’s because in order to make the information you plan to distribute in the first place, you have to abuse a child.
We also can say that there are certain things that are so utterly without redeeming social value, that even if the person making them didn’t technically violate any laws, we ban this. Snuff films. They’re simply revolting, horrible, and dangerous.
We can say we need to draw the boundary at things that implicate our national security. You don’t, if you have specific information available on the movement of troops in a war zone, have total freedom there.
The way that we have talked about this is through an analysis called strict scrutiny, which means that when you regulate speech, you’ve got to ask key questions. Does this further a compelling governmental interest, things like the actual physical protection of children, national security? So, you also see why this Tennessee law is designed, written, to link the restrictions on drag performance to children, when it clearly has very little to do with children.
So that’s why the next part of the strict-scrutiny analysis is really, really important here. Any law that regulates speech because of a compelling government interest has to be as narrowly tailored as possible. Are we acting sufficiently to protect minors from this material that at least a significant number of people believe is indecent and inappropriate for children to see? And are we doing it in a way that doesn’t stop people from communicating whatever message they’re trying to communicate, even if it’s as simple as, hey, I think this looks hot.
What would you say to the person who says your argument against the law comes down to drag queens and kings should have the same protections as pornographers?
I think drag queens ought to be entitled to at least the same as pornographers, because drag queens, by definition, are not doing pornography. Right now this law attempts to reframe drag performances as harmful, and claims to only regulate performances that are harmful to minors. But now we’ve got to ask what is harmful to minors and there are definitions in the statute, but these definitions are very vague. And frankly, the kinds of things that the statute defines as harmful – minors having access to strip clubs – that’s already illegal. The only reason to add drag performers to this list is to send a message to the performers and to the public and to any young LGBT person out there thinking about coming out or performing or expressing themselves in a way that doesn’t conform to what these folks, these legislators, think gender ought to look like.
And that is bad enough, but making it a felony? Then you are talking about taking away somebody’s right to vote.
Oh wait. Tennessee is a state that takes the right to vote away from convicted felons.
That’s right, in a lot of cases.
And this [Tennessee] law is based on what it calls community standards, which is a legitimate First Amendment term. But community standards in the local judicial district where these folks are performing means that there are 31 judicial districts here. So, we’ll have 31 different or similar standards if this law stands. And that cannot possibly be a reasonable interpretation of the First Amendment, that the law can vary inside of a state.
But here’s the other thing the law does that’s so disturbing. It doesn’t actually tell you what is prohibited. It simply says anything that runs afoul of these community standards. Now, you’ll find some obscenity ordinances will say things like, you cannot display the female breasts below the areola. But it has to be that specific to pass First Amendment muster. Because everybody has got to know what it is that they can or can’t do to avoid being charged with a crime. Every law enforcement officer has to know.
Well, most drag shows don’t involve the removal of any clothing, that I am aware of. But you’re saying it’s necessary to be that specific. Why?
If it’s not clear, it allows police officers to use their subjective judgment to decide whether something is or isn’t obscene. And we do not want to live in a society with morality police. Because we can look across the ocean and see there are ample people in the world who believe that it is indecent for women to go about without their hair covered.
Now, in Tennessee, the people who support this new law tend to be the same people that are railing against their fear that somebody is going to try to impose shariah law in the United States. And they do seem to be awfully, awfully content, imposing something shockingly similar.
OK, so I understand your point about what courts have said about when and under what conditions free speech or expression can be restricted. But there are also loud parents who say the world is dangerous and they need help.
First of all, what about the parents who have a different set of values? This is taking away parents’ rights to make decisions for their children. So, I also want to ask parents, if you are parenting your children effectively, and explaining to them your values and how the world works, and giving them the tools they need to be successful, why do you need the legislature to get rid of entire categories of people or materials or ideas in public view?
I don’t think they’re really concerned about their ability to protect or raise their children. I think that they are interested in oppressing people and they are using their parenthood as a badge as to why they should be allowed to do that.
The Supreme Court had a great, great response to that argument.
You’ll find this in Reno v.the ACLU. We cannot reduce what is appropriate for the mailbox to what is appropriate for the sandbox.
What does the person who says, “Look, it’s not that big of a deal for drag performances to be limited to indoor venues where everyone is 18 or older” need to know?
People in that middle, who don’t have to care, they frequently, as a political group, appear to have power. And financially, economically speaking, they typically have a good life. So of course, it’s very easy for those people not to be alarmist because the line of “what is the line of what kind of oppression is acceptable?” it’s got to move a long way before it gets to them.
What those people need to recognize is the pattern. They come for the most just not necessarily a despised minority, at least by most people, but a fringe minority that’s a relatively small group with virtually no political power.
Once they get that, they can take another step.
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