Mark Satta, Wayne State University – First Amendment Violations in Anti-Drag Laws

There’s a lot of hubbub around the First Amendment in the news.

Mark Satta, assistant professor of philosophy at Wayne State University, examines this in the context of anti-drag laws.

Mark Satta is assistant professor of Philosophy at Wayne State University. He received his PhD in Philosophy from Purdue University and his JD from Harvard Law School. His research specializations include epistemology, philosophy of language, and philosophy of law, with an emphasis on First Amendment freedoms such as freedom of speech and freedom of religion. His work often examines legal cases that concern both First Amendment freedoms and the advancement of LGBTQ civil rights.

First Amendment Violations in Anti-Drag Laws

Throughout 2023, many Republican-controlled state legislatures have introduced bills aimed at suppressing drag shows. These bills have been criticized for violating the First Amendment’s protection of free speech.

Given Supreme Court free speech precedent, there is strong reason to think that most drag shows constitute speech protected by the First Amendment. This is because freedom of speech covers what is called expressive conduct. Expressive conduct consists of non-speech aimed at conveying a message. It can include actions like waving a flag, marching in a parade, or dancing.  

Drag shows typically consist of many forms of expressive conduct such as dancing, acting, lip-syncing, and wearing elaborate outfits.

Recent events in Tennessee provide a good example of how a law aimed at limiting drag performances can violate the First Amendment.

Tennessee was the first state this year to pass an anti-drag law. That law would have made it a crime to perform adult cabaret on public property or anywhere it could be viewed by a person who is not an adult. The law defined adult cabaret to include performances by “male or female impersonators” that the state deemed harmful to minors.

On June 2, a federal judge ruled that this law violated the First Amendment. A key First Amendment principle is that the government generally cannot engage in viewpoint discrimination, which occurs when the government seeks to suppress speech advocating a particular perspective. The judge ruled that Tennessee’s law engaged in unconstitutional viewpoint discrimination against certain views about gender identity. This decision will likely be influential as debates continue about the legal status of drag.