drag shows – Techdirt (original) (raw)

Drag Performers Collect $100k Settlement From NH State Rep Who Smeared Them As Sex Offenders

from the mfer-just-climbed-up-his-own-petard dept

Confirmation bias. It’s expensive. Just ask David Love, who has written out a $100,000 check to two drag performers for defamatory comments he made — more than once! — while supposedly serving his constituents in his position as a New Hampshire state rep.

New Hampshire residents Robert Champion, who performs under the stage name Monique Toosoon, and Michael McMahon, who performs under the stage name Clara Divine, filed the lawsuit in April 2022 after Rep. David Love (R-Derry) made public remarks about the performers that he later admitted were inaccurate. Champion and McMahon agreed to settle the lawsuit on Thursday, as the Manchester Ink Link first reported.

While testifying at a New Hampshire House committee meeting, Rep. Love falsely claimed that Champion was a convicted sex offender, according to a Boston Globe report. He also told the legislature that McMahon had been “rubbing butts” with kids during a family-friendly storytime event in 2021.

This was stupid. How it got to this point is even stupider. We’ll move back down the timeline a step at a time. What prompted Rep. Love to deliver these statements while acting as a state rep? Well, it was a discussion over a bill he sponsored — one that would require background checks for public library employees. Why was this suddenly a necessity? Because Rep. Love firmly believed libraries were becoming honeypots for child molesters or something (it’s unclear from his words, so we’ll have to consider the context).

He expressed concerns about library events featuring drag queens.

That’s one way of putting it. That’s the way Boston.com chose to put it. Another way to put it was that Rep. Love was expressing an irrational concern — one he supported with “information” passed on to him by other people. And he chose to pass it on as actual facts because he’s too impaired by his own bigotry to perform due diligence before making a $100,000 ass of himself in public.

We know this because the drag performers not only asked for $100,000 but a full retraction and apology from state rep David Love. And they got it. It’s this apology that shows Love was given some bullshit from someone else that he definitely wanted to believe was true because it confirmed his own biases. So, that’s what he chose to do: believe it and pass it on to others like the contagion it was.

After being provided with inaccurate information, information that I failed to verify, I publicly accused Robert Champion aka Monique Toosoon of being a registered sex offender and Michael McMahon aka Clara Divine of “rubbing butts” with children. I made those statements before the New Hampshire legislature. Those allegations were then repeated to Manchester Ink Link and before the Derry Town Council. I have since learned that those assertions were completely false. I wish to publicly retract those statements and apologize to Robert and Michael.

The question is: will he learn? More importantly, will others with the same biases learn anything from this themselves? Or will it just be another one of those things immediately buried under the next bit of misinformation people like Rep. Love choose to fill their brains with. Rep. Love has a $100,000 reminder which might make this stick. As for everyone else, it probably won’t even make them think twice.

Filed Under: david love, defamation, drag shows, michael mcmahon, new hampshire, robert champion

Supreme Court Shrugs Off Opportunity To Overturn Fifth Circuit’s Batshit Support Of Texas Drag Show Ban

from the fuck-em-for-trying,-I-guess dept

The laziest court in the land has again decided it’s not worth its time to undo another horrible decision issued by an appellate court that far too often feels the Fifth (Circuit) is superior to the First (Amendment).

The nation’s top court seems more motivated to take cases if it can curtail long-held rights. When rights are already being curtailed, it appears it can’t be bothered to take a closer look. Sure, the Supreme Court has undone some horrible qualified immunity decisions issued by the Fifth Circuit, but when it comes to certain people being held under the government’s thumb? Too bad. Thanks for playing.

And such is the case here, as explained by the Associated Press.

The Supreme Court on Friday rejected an emergency appeal from a student group that has been blocked from staging a drag show at a public university in Texas.

The justices did not comment Friday in refusing to issue an order that would have allowed Spectrum WT — a group for LGBTQ+ students and allies — to put on a charity show on March 22 on the campus of West Texas A&M University in Canyon, located just south of Amarillo.

It’s not like the Supreme Court won’t lift a finger if it’s drag shows on the line. It previously left an injunction in place preventing Florida from enforcing its anti-drag show law. There are other injunctions in place blocking similar laws in Montana and Tennessee, so the highest court in the nation will still be given opportunities to hand down precedent.

But will it? These aren’t the sort of cases the Supreme Court appears willing to address. It has twice been given an opportunity to examine appellate rulings and has twice decided it simply won’t. And now we’re looking at 50-50 splits. By ignoring this case, the highest court in the land is divided against itself, saying (without a ruling) that Florida’s law is unconstitutional while (with the same inaction) declaring Texas’s law constitutional.

Its unwillingness to review this case indicates it at least partially agrees with the ridiculous conclusion reached by the Fifth Circuit earlier this year:

U.S. District Judge Matthew Kacsmaryk ruled against the group. “The First Amendment does not prevent school officials from restricting ‘vulgar and lewd’ conduct that would ‘undermine the school’s basic educational mission’ — particularly in settings where children are physically present,” Kacsmaryk, an appointee of former President Donald Trump, wrote last year.

The 5th U.S. Circuit Court of Appeals in New Orleans, which hears cases from Texas, refused to allow the drag show to go ahead or speed up its timetable for hearing and deciding the student group’s appeal.

Considering this case deals with drag shows hosted by public universities, the chances of actual children being present are incredibly slim. And it’s highly unlikely the audience would contain unattended children, which means the court doesn’t believe parents or guardians are capable of deciding what their kids can or can’t view.

It’s not as though cases like these have resulted in a steady stream of contradictory rulings. The Fifth Circuit Appeals Court is the outlier, much as it always is when civil rights are on the line. And not in a good way! Despite the addition of a judge who clearly recognizes rights violations when he sees them, the Fifth Circuit continues to play by its own rules. And that’s clearly unacceptable when it’s just as beholden to the Constitution as the rest of us.

The real shame here is that the Supreme Court can’t be bothered to set it straight. Then again, we should probably count ourselves lucky. When rights are on the line, the Supreme Court has indicated it would rather solidify the astounding lead white males have built for themselves than protect those who still find themselves under the thumb of straight Caucasians.

Filed Under: 1st amendment, 5th circuit, drag shows, supreme court, texas

Judge Extends Injunction Against Montana’s Anti-Drag Show Law

from the keep-on-losing,-bigots dept

Losing must be the new winning. With a single exception (and that was only a public college), every state (or city) that has passed an anti-drag show law has seen it blocked by a federal court. And yet, this string of losses doesn’t seem to be deterring performative legislators from trying to violate the First Amendment rights of certain performers.

These laws are all of a type. A very specific type. Pretending to be necessary revamps of existing obscenity laws, opportunistic bigots are hoping to prevent drag performers from performing, by criminalizing either the hosting of these shows or the very shows themselves.

They’re such an obvious violation of First Amendment rights they (almost never) survive a first review from a court before being hit with an injunction. The governments defending these absurd, abusive laws pretend it’s about protecting the children when it’s nothing more than a new wave of attempted oppression that has found way too many supporters among the elected and the electorate.

So they keep passing laws and they keep losing in court. Montana — “led” by Governor Greg Gianforte — passed an anti-drag law earlier this year. The law was immediately challenged. And that challenge led to an immediate injunction from a federal court, just in time to allow those who would have otherwise been punished by the law to carry out their annual Montana Pride celebration.

And punishment was definitely on tap. The law that specifically outlaws performances by “drag kings” and “drag queens” was backed by legislators like… well, Governor Gianforte, who has endless enthusiasm for performative lawmaking. Just take a look at his ridiculous TikTok ban, which will now take Montana residents’ money and convert it into things like… losing in court! And being ridiculed by non-idiots!

It was also backed by this legislator, who made it pretty clear that this bill was meant to criminalize something he just didn’t like.

Proponents, including bill sponsor Rep. Braxton Mitchell, R-Columbia Falls, said they were trying to shield Montana children from what they consider sexually charged performances. During legislative proceedings, Mitchell suggested that drag story hours and other drag performances promoted as family-friendly are part of a “sick agenda” and “damaging to a child’s psychology and general welfare.”

As for the punishment part, we’ll read from the second ruling [PDF] on this same subject handed down by federal judge Brian Morris, who extended the injunction indefinitely.

Owners, operators, managers, and employees of “sexually oriented” businesses convicted under H.B. 359 face fines from 1,000to1,000 to 1,000to10,000 and, for a third or subsequent offense, mandatory revocation of business licenses. Libraries, schools, public employees, and entities that receive any state funding face fines of $5,000 and mandatory suspension (first offense) or permanent revocation (subsequent offenses) of an applicable teaching, administrative, or specialist certificate if convicted of violating H.B. 359. H.B. 359 provides for a private right of action in addition to imposing criminal liability.

That’s the criminal side. That’s already a bit much. But that’s nothing compared to the civil side of the equation.

A minor who attends a drag story hour or “sexually oriented performance” in violation of H.B. 359 § 2, or the minor’s parent, may bring a civil action up to ten years after an alleged violation against any “person who knowingly promotes, conducts, or participates as a performer.”

It’s not just an immediate threat of punishment. It’s a decade-long threat of punishment. That’s insane. And that’s something not included in the state’s existing obscenity law, which actually targets at least some unprotected speech.

Citing rulings dealing with similar laws passed in Tennessee and Florida, the Montana court — once again — explains this law is so obviously unconstitutional the court has no choice but to block its enforcement. And the (at the moment temporary) grave this law lies in was dug by proponents of the law via their statements during the bill’s debate as well as their admissions in court.

Public testimony from proponents of H.B. 359 offered only anecdotal and/or unsupported evidence of a purported link between drag and gender nonconformity with harm to children. The legislative history includes extensive public concerns about the bill’s constitutionality raised by organizations, private individuals, and legislators. H.B. 359’s public testimony adds further support to the Court’s finding that the legislature passed the law for an impermissible purpose. The legislative history of H.B. 359 evinces an overt and impermissible purpose to target the speech and expression of LGBTQ+ community members, particularly trans, Two Spirit, and gender non-conforming people. Strict scrutiny would apply even were H.B. 359’s statutory text content-neutral and viewpoint-neutral.

Here’s just one of the examples of this grave-digging listed before the court arrived at that conclusion. (There are plenty more included in the ruling, so definitely read the whole thing.)

Particularly concerning to the Court is the same proponent’s testimony that a Drag Queen Story Hour employee had been arrested on child pornography charges. Sen. J. Comm. Hrg. at 08:59:38 (Apr. 4, 2023). The Associated Press has refuted this claim, noting that it represents “[m]isleading, anti-LGBTQ rhetoric . . . used to target drag storytimes[.]” Ali Swenson, Man Charged for Child Porn Didn’t Work for Drag Queen Story Hour, AP (June 22, 2022), https://apnews.com/article/factcheck-drag-queen-story-hour-not-arrested-416945160416\. Neither the proponent’s disagreement with the academic article, nor their reliance upon a disproved and inflammatory claim, provides a basis for a finding that drag harms children.

After picking apart all the bigoted assumptions these legislators somehow converted into a bill (that even its proponents doubted was Constitutional) — most of which simply presume non-binary people sexually exploit minors pretty much all the time — the court makes it explicitly clear this law is doomed, even if the injunction blocking it is (legally-speaking) temporary.

State Defendants finally argue that H.B. 359 complies with the First Amendment because it does not impose an outright ban. State Defendants note that H.B. 359 “does not prevent [drag shows on] non-publicly funded private property” and “does not restrict drag show story hours at libraries or schools after regular hours, or as part of non-school sanctioned extracurricular activities.” State Defendants explained during the hearing on July 26, 2023, that a drag story hour still could take place at a library at 11:00 P.M. Forcing protected expression to take place under cover of darkness, rather than banning it outright, does not save H.B. 359 from constitutional infirmity. H.B. 359 is not narrowly tailored to serve a compelling government interest.

That’s just the First Amendment problem. The Fifth Amendment problem may somehow be even bigger. The Fifth Amendment protects people from being held “criminally responsible for conduct which [they] could not reasonably understand to be proscribed.” They say, “don’t do the crime if you can’t do the time.” But what if it’s impossible to understand what the crime is?

I’m going to quote at length here because this particular (and particularly hateful) law poses problems not observed elsewhere but ones that can be expected to crop up elsewhere as similarly-aligned idiots seek to punish non-binary people for being non-binary.

H.B. 359’s missing definitions and its definitions for “drag king,” “drag queen,” “drag story hour,” “nude,” “public property,” “sexually oriented,” “sexually oriented business,” “sexually oriented performance,” and “stripping” run a significant risk of vagueness and overbreadth. A “flamboyant or parodic” gendered persona with “glamorous or exaggerated costumes or makeup” could be interpreted to include any number of theatrical and artistic performances. A performer who removes no clothing or who removes only outer layers still might fall within H.B. 359’s definition of “[s]tripping.” H.B. 359 remains silent as to whether “depiction[s] or descriptions[s] of human genitals or of sexual conduct” encompass non-live content or literary, film, theatrical, or other artistic depictions. “Nude,” as defined by H.B. 359, could apply both to someone fully clothed, with part of their buttocks visible through partially sheer fabric, and to someone in a bathing suit that partially uncovers the lower portion of a breast.

H.B. 359’s broad private right of action allows any minor or their parent to bring a suit against someone whom they believe has violated the statute up to ten years after the alleged violation. H.B. 359 contains no carve-out for content possessing “serious literary, artistic, political, or scientific value.” The law makes no reference to geographical limitations. A minor could be considered “present” in a public park even if they were hundreds of yards away and out of earshot. Parental consent proves irrelevant to potential criminal liability. H.B. 359 provides for no affirmative defenses.

The statute leaves the public in the dark about what conduct might carry criminal and civil sanctions. H.B. 359 fails to define the conduct that it criminalizes “with sufficient definiteness that ordinary people can understand what conduct is prohibited.” H.B. 359 additionally appears likely to “encourage arbitrary and discriminatory enforcement.” H.B. 359’s liability scheme, including a private right of action, creates a significant risk of arbitrary enforcement against people who are not drag performers but who do not conform to traditional gender and identity norms. Whether a performance qualifies as “sexually oriented,” for example, rests upon a distinction between “female” and “prosthetic” breasts.

A trans man who has undergone gender affirming surgery to remove breast tissue could face liability for showing his bare chest. A trans woman who receives medically necessary hormone replacement therapy and who has developed breast tissue or who has undergone gender affirming surgery to receive breast implants could face similar liability. Authorizing members of the public and state authorities alike to draw such a distinction with respect to the bodies of other people likely would all but require them to engage in identity-based discrimination and gender-based discrimination.

H.B. 359 also permits private citizens and state authorities to pursue legal action based upon a judgment as to who qualifies as a “drag king” or “drag queen.” This assessment appears to hinge upon a personal, subjective determination about what qualifies as a “flamboyant or parodic” gendered persona with “glamorous or exaggerated” clothing and makeup, without any statutory definition of these terms for guidance. H.B. 359’s statutory scheme targets drag story hours and drag performances. It also targets trans, Two-Spirit, non-binary, intersex, and gender-nonconforming people, as well as others who dress or present in ways different from the gender assigned to them at birth.

This law has no chance of surviving. Unfortunately, many of the hateful people backing this bill will. The same kind of people that unkindly suggest that if you don’t like America you can just leave are the same kind of people that refuse to extend the rights they enjoy to people they don’t like.

Well, if they don’t like sharing freedom, maybe they should leave. The world is full of countries that punish LGBTQ people simply for existing. Maybe they’d feel more comfortable there, rubbing elbows with autocrats and extremists, rather than cluttering up our country with their irrational hatred.

Filed Under: 1st amendment, 5th amendment, drag shows, free speech, montana

Appeals Court Tells State Of Florida It Still Can’t Enforce Its Unconstitutional Anti-Drag Show Law

from the still-in-the-wrong,-Florida dept

Florida’s legislative bigots have already been told twice. I guess they need to hear a third time.

The state passed a law that outlawed drag shows, resulting in it being sued by a venue that often hosted drag shows, Hamburger Mary’s. The lawsuit claimed the new law violated several rights, first and foremost being the First.

The district court agreed. It granted an injunction to Hamburger Mary in June, blocking the law from being enforced while the court sorted out the (un)constitutionality. The state tried to argue this wasn’t about protected speech, but rather just a modification of an existing obscenity law that had never been found unconstitutional. The court disagreed, using the government’s own words against it.

The state claims that this statute seeks to protect children generally from obscene live performances. However, as explained infra, Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers. In the words of the bill’s sponsor in the House, State Representative Randy Fine: “…HB 1423…will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’ ”

Since the law was plainly aimed at suppressing a very particular form of speech, the court said the state couldn’t use it against anyone. The state immediately tried to enforce it. Or, at least, it tried to talk the court into letting it enforce it against anyone who wasn’t this specific plaintiff.

Again, the government lost. The court said the injunction applied to the law, not to the entity seeking the injunction. Any attempt to enforce it against anyone in the state of Florida would be a violation of the injunction. The court shot down the state’s terrible arguments with this paragraph:

Defendant has presented no evidence or compelling argument that she will suffer irreparable harm. Instead, she baldly proclaims that Florida “suffers a form of irreparable injury” any time it is enjoined from enforcing one of its statutes. See id. (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)) In Maryland, however, the Supreme Court’s statement was supported by evidence of ongoing, concrete harm to law enforcement and public safety. Defendant has presented no such support here. Her position that the state suffers irreparable harm any time it is enjoined from enforcing one of its statutes defies common sense and is not supported by any meaningful precedent.

Not willing to be deterred by successive losses, the state immediately appealed the injunction, asking the Eleventh Circuit Appeals Court to temporarily stay the injunction until the case was fully settled.

Ron DeSantis’ government is now a three-time loser. The Eleventh Circuit ruling [PDF] says the injunction stays in place for all the reasons listed by the lower court as well as a few of its own assertions and affirmations.

Once again, the state (represented here by Secretary of the Florida Department of Business and Professional Regulation Melanie Griffin) is asking to be allowed to enforce this law against anyone but Hamburger Mary’s. And, once again, Griffin and the government she represents are being told, “No.” The law is simply too bad to be allowed to be enforced.

The problem for Secretary Griffin is that statutes which are unconstitutionally overbroad are “properly subject to facial attack.” Secretary of State of Md. v. Joseph H. Munro, Inc., 467 U.S. 947, 968 (1984) (rejecting argument that state statute found to be overbroad should not “str[uck] down on its face”). As a result, a successful overbreadth challenge “suffices to invalidate all enforcement of th[e] law ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the threat or deterrence to constitutionally protected expression.’” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (emphasis in original) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). The Supreme Court has “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—specially when the overbroad statute imposes criminal sanctions.”

That’s just the law of the land, Melanie. You know, the First Amendment and several decades of Supreme Court precedent. Protecting free speech is something the entire government is supposed to do, not just the federal judiciary.

And Griffin seemingly knows this. The appeal brief contains the state’s acceptance of the lower court’s take on the law that led to it issuing an injunction. And yet, the state still thinks these determinations should only apply to the entity suing it, not others in the state similarly situated. If the state is going to make that much of a concession, it boggles the mind to think it still has any legal footing to ask for even a partial lifting of the injunction.

To recap, the district court concluded that § 827.11 was likely overbroad and unconstitutional under the First Amendment, and Secretary Griffin does not take issue with that ruling in her motion for a partial stay. Given Supreme Court cases like Ashcroft and Eleventh Circuit cases like FF Cosmetics—which have affirmed preliminary injunctions barring enforcement of a statute or ordinance which is likely overbroad—Secretary Griffin has not made a substantial showing that the district court erred in crafting the preliminary injunction to prohibit her from enforcing § 827.11.

About as open-shut as it gets. There’s a dissent attached, though. It’s written by Judge Andrew Brasher, a Trump nominee who only had six months of federal court experience before being handed a job at the Appeals Court. As is to be expected, Brasher is no fan of equal rights or people who aren’t as white/straight as he is.

His dissent ridiculously asserts a state should be allowed to enforce a “facially unconstitutional” law simply because the plaintiff in the case admitted its own harms would be remedied if (duh) the law was never enforced against it. Apparently Brasher believes the rest of the state should be subjected to an unconstitutional law and the harms it causes up until the point those affected by an unlawful law decide to start suing about it. It’s an insane argument and one only a guy who doesn’t like drag shows or drag show performers could whip up to tack onto a straightforward ruling the states the obvious: a likely unconstitutional law can’t be enforced against anyone because it’s (double duh) unconstitutional.

Fortunately, that’s just the dissent. The injunction stays in place and the lower court’s ruling is kept intact. At the end of this, the Florida legislature will either need to scrap the law entirely or come up with a far more creative way to oppress people certain legislators just don’t care for.

Filed Under: 11th circuit, 1st amendment, drag shows, florida, free speech, hb 1423

All You Do Is Lose: Utah Anti-Drag Moratorium Struck Down As Unconstitutional

from the running-on-the-shitheel-platform dept

Terrible people who represent terrible people are making terrible laws. Catering to the base is never a good idea because all it does is elevate the lowest common denominator.

Utah isn’t an outlier. It has competition from several other state governments that aren’t necessarily as subordinate to the unofficial state religion. The separation of church and state prevents governments from officially picking a winner from the ecclesiastical front runners. But it rarely prevents them from engaging in legislation that caters to the winners of this unofficial theocratic lottery.

Utah wants to be Florida. Or Texas. Or Idaho. Or any number of states that have passed performative legislation targeting everything from perceived anti-conservative social media bias to TikTok, the insanely popular platform dipshit legislators have decided is the best thing to waste tax dollars legislating against. Utah has also taken a First Amendment-violating stance against porn.

Like others mired in this internally incoherent perception of “conservative” government, the Utah legislature has decided bigger government is better government when it comes to silencing anyone or anything that might possibly offend its most easily offended constituents.

The current performative legislative soup du jour is “drag.” Legislators pretend there’s some sort of latent threat to children that necessitates punishing people who refuse to conform to binary sexual constructs. If it isn’t unisex bathrooms, it’s the omnipresent threat to outdated societal mores that apparently demands the erection and establishment of unconstitutional laws.

Tennessee recently tried to ban drag shows, hiding its true intent behind pointed modifications to its adult entertainment regulations. Utah is trying the same thing. One of its cities tried to get out ahead of the drag ban curve by digging deep into its reserves of unenforced statutes. The modifications its legislature introduced made it pretty clear it was only meant to prevent one specific form of creative expression.

City legislators in St. George, Utah, apparently decided catering to bigots was all the justification they needed to start oppressing the people these bigots hated. Fortunately, the city doesn’t have the final say on the matter. Its anti-drag law was recently challenged by those subject to it.

This challenge has succeeded. All it took was a federal court taking a look at the law, as well as its intended outcomes, to come to the conclusion [PDF] that the law is unlawful.

It’s a 60-page decision that thoroughly dismantles the anti-drag law. But it’s easy to tell where this ends up by reading the opening paragraph of the ruling.

Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

[…]

Municipal governing bodies such as county commissions and city councils have a political role in which they can respond to public interest and requirements, but they also have a governing role in which they are responsible to protect the constitutional rights of all people who are in their jurisdiction. In that governing role they must be vigilant for all, not just those who support them. Those with whom they disagree with and those with whom they share little in common are also entitled to governmental rights and protection.

In other words, you can’t legislate against people you don’t like just because you don’t like them. In fact, it’s the groups the government collectively hates that deserve the most protection from the government. People the government likes never face reprisal. For everyone else, there’s the Constitution.

The court notes that it may be true that many, if not most, Utah residents would prefer to curtail this form of expression. But while that may encourage legislators to change the rules of public expression to cater to their constituents, these legislators must not forget they’re still expected to abide by the Constitution, even if that means disappointing those who are the loudest and angriest about their inability to coexist peaceably with people who aren’t like them.

Challenging times give us an opportunity to re-examine fundamental principles of our government and, once again, determine to adhere by them. We recognize that just as we enjoy and prize our rights, we must value and respect the rights of others. This case presents an opportunity for our recommitment.

The history of this case is telling. Here’s how it started:

Plaintiffs Southern Utah Drag Stars, LLC (“Drag Stars”) and Mitski Avalōx (“Avalōx”) seek their opportunity to speak in the public square through a community drag show which they say conveys messages of diversity, inclusion, and support for individuals with non-traditional gender expression and identities. Drag Stars applied for a special event permit (the “Permit”) to hold “Our Allies & Community Drag Show” (“Allies Drag Show”) at a public park in St. George, Utah (the “City”).

The City denied the Permit based on never-previously-enforced ordinances that prohibit special event advertising until a final event permit is issued. The record shows the use of this prohibition was a pretext for discrimination. The City also enacted a moratorium barring all new special event permit applications for six months. At the same time the City’s two-step blocked Drag Stars from holding the Allies Drag Show for at least six months, the City retroactively exempted the majority of other known violators of the advertising prohibition and exempted major swaths of events from the moratorium.

This move followed the city council’s ousting of the city manager for allowing HBO to hold and film a drag show in one of the city’s parks in 2022. The council told the city manager to block the permit. He refused. A council member then published an open letter criticizing the manager, which was then followed by the council demanding the manager be fired. Following his resignation, the former city manager threatened to sue St. George for wrongful termination. He secured a $625,000 settlement.

If there’s any satisfaction to be gained from these events, it’s that the city manager — who correctly labelled the council’s permit refusal as unconstitutional — has managed to make (as the court states it) St. George’s “politically strongly conservative” residents pay him $625,000 to not work for them anymore.

Not content to blow money on a city manager who actually managed to pass a civics class, the city generated even more permit stipulations with the sole intent of preventing people it didn’t like from utilizing public spaces. And it decided to prevent the plaintiffs from securing a permit despite the fact the plaintiffs complied with all of the new, extremely pointed restrictions.

The city actually agreed to grant a permit to the plaintiffs. But it looked for new ways to deny it after Lisa Dorn, a local clinical therapist, sent a text message to the same council member (Michelle Tanner) who forced the city manager’s resignation. All the message said was that Dorn “believed” drag shows had been outlawed in the state.

Dorn’s message stated (among other things) that the Southern Union Drag group were “all sexually abusing kids.” Seems pretty defamatory, but that’s not the issue at the center of this case.

One hour later, the council member sent an email to the city and the city attorney claiming she was receiving “more complaints” about “adult entertainment” being “performed in front of children.” As evidence, she offered the text message she had recently received from this supposed “mental health therapist.”

The city attorneys and council, guided by Lisa Dorn, started looking for any reason at all to deny this permit. This job was considered so important it was handed over to an unpaid intern from a local high school. The intern found several planned events violated the rules enacted to prevent the drag show from taking place. The city then offered exemptions to every other permit holder other than the drag show requesters. But it decided to enforce one stipulation against the drag show — one it had never enforced prior to his event.

The only advertisement the city based the denial on was the post on the vendor website prior to March 21, 2023, not the post on social media Drag Stars made March 30, 2023. Prior to the Permit denial, the City had never previously enforced the Advertising Prohibition.

There’s plenty more in the decision about the city’s extremely selective enforcement of its public permits statutes.

But here’s the payoff: this selective enforcement, along with the problematic stipulations themselves, violates the First Amendment.

There is no question that there are live issues in this case and granting the requested relief would have a real effect in the real world. This order directs the City to reverse their denial of Drag Stars’ special event permit and orders the City to issue a permit for Drag Stars event to be held on June 30, 2023. Drag Stars can now hold its event, an effect in the real world.

The city is completely in the wrong here, and the court is more than happy to point this out. Resetting the clock and forcing the plaintiffs to resubmit their permit application would most likely result in the same bullshit they experienced the first time. And the court won’t allow this.

[G]iven the thin arguments the City has advanced including that drag shows are not protected speech, that the record evidence demonstrates the City could bar this application based on “an interest in protecting children;” and because of the plentiful evidence of the animus of the Defendants towards Plaintiffs’ speech, relief granted Plaintiffs cannot assume there will be a fair review the application. To provide Plaintiffs’ effective relief, the City must be ordered to reverse the Permit denial and further be ordered to grant the Drag Stars’ Permit and allow Plaintiffs to hold their event on June 30, 2023. This relief is a mandatory injunction because it forces the City to act a particular way and it is not difficult to foresee additional supervision being necessary to ensure the City complies.

The court says the advertising restriction used to deny the Drag Stars’ permit is bullshit. And that makes it unconstitutional:

The City argues vaguely about confusion and public order being enhanced because applicants would not want to advertise “an event that may not be approved.” One council member speculated that the prohibition may prevent legal issues arising if an event is advertised and a permit is not issued. The City provides no evidence of experience with these interests. And they are wholly undercut by reality. When the City reviewed pending permit applications on March 21, 2023, 12 out of 16 were advertising without a permit—applicants do not appear concerned about permit denial.

[…]

The Advertising Prohibition sweeps within its bounds, with no foundation for its restraints, and impractical effect, communication that may not be restricted under the First Amendment. Therefore, Plaintiffs have demonstrated a substantial likelihood of success on the merits that the advertising prohibition is unconstitutionally overbroad.

And so it goes for every prong of the First Amendment examination. The restrictions were put in place to harm one particular permit requester. The stipulations may have always existed (but still unconstitutional!) but were never enforced until the city found some citizens it didn’t want to work with.

On top of all of this, there’s plenty on the record showing this restriction was enforced for the sole reason of preventing Drag Stars from engaging in protected expression. The court has compiled a long list of actions the city took to specifically block Drag Stars’ applications.

And so it goes for another page and a half. I encourage you to read it for yourselves.

The city beclowned itself by pretending it was doing normal city business in a neutral fashion while generating tons of evidence showing it was only seeking to find some way to deny a permit to Drag Stars. The court says the whole thing is unconstitutional and that the city cannot enforce the statute against anyone, much less Drag Stars, until it’s rewritten to comply with the Constitution. The city loses. And its legislators have been exposed as hateful people too stupid to understand the first, and most basic, Constitutional right enjoyed by Americans, even Americans these particular Americans hate.

Filed Under: 1st amendment, anti-drag, drag, drag shows, lisa dorn, st. george, utah

Not Everything Is Bigger In Texas: Latest Dumbass Anti-Drag Bill Appears To Outlaw Breast Enhancements

from the assuming-this-will-be-enforced-by-the-gropiest-of-cops dept

I cannot even begin to understand the unfettered amount of dumbshittery being passed off as legislating in the public’s interest by politicians far more performative than any drag queen I’ve had the pleasure of observing.

Full disclosure: I never did live deep in the heart of Texas, which I assume is the cholesterol-clogged artery known as “Houston.” But I did live for 15 years in El Paso, Texas, which, to be fair, was far more Mexico and/or New Mexico than actual Texas. I mean, if you were going to develop an accent, it would be the one that uses a tilde rather than the one that simply jettisons hard g’s to allow words to just kind of sprawl out of someone’s moth.

I will reference Texas and my subjective experiences as an almost-Texan for a decade-and-a-half later in this post, but first let’s get to the text of this ridiculous piece of performance art [PDF] Texas state senators actually think is worthy of the governor’s signature. (h/t independent journalist Erin Reed)

It’s a blatantly unconstitutional attempt to ban drag shows. It tries to close any drag show-friendly loopholes by piling on even more unconstitutionality. It’s part-and-parcel with dozens of bullshit, playing-to-the-basest-of-the-voter-base pieces of legislation being pushed (and passed!) by people who are both incredibly stupid and incredibly selfish. These are the acts of sub-humans who are absolutely unwilling to engage with anyone that doesn’t adhere exactly with their preconceptions of “normal.” Fuck these people. All of them.

But here’s the text of the passed Texas Senate bill, which will outlaw far more than the “drag” people these hideous public “servants” so obviously and publicly hate:

AN ACT relating to the authority to regulate sexually oriented performances and to restricting those performances on the premises of a commercial enterprise, on public property, or in the presence of an individual younger than 18 years of age; authorizing a civil penalty; creating a criminal offense.

Reading only this part of the bill, one might think this is a common sense move meant to limit children’s exposure to sexual activity. But you only have to start reading the definitions and specifics directly after this opening paragraph to understand that this is meant to punish only certain people and, inadvertently, criminalize a lot of “sexually oriented performances” Texas politicians know and love.

To wit, the list of forbidden “sexual conduct” includes all of the following:

(1) “Sexual conduct” means: (A) the exhibition or representation, actual or simulated, of sexual acts, including vaginal sex, anal sex, and masturbation; (B) the exhibition or representation, actual or simulated, of male or female genitals in a lewd state, including a state of sexual stimulation or arousal; (C) the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals; (D) actual contact or simulated contact occurring between one person and the buttocks, breast, or any part of the genitals of another person; or (E) the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics.

Wow. This list of things this outlaws includes (but is goddamn not limited to) all of the following:

And that’s only the low-hanging fruit this wording suggests. There’s plenty more this law could be read to outlaw. I’m sure our readers will find dozens of examples of activities/accessories criminalized by this legislation.

It’s not just badly written. It’s broadly, stupidly, vindictively written with the sole intent of inflicting civil and criminal pain on not just participants in drag shows, but anyone who doesn’t clearly define themselves as either male or female. And those who define themselves as either male or female but don’t fit the stereotype these legislators wish to perpetuate.

It not only attempts to curb protected expression, it seeks to impose a moral code that will be poorly defined by bigots and selectively enforced by lower level bigots wearing badges. It will be a permission slip for prosecutors to fine and jail people just because they’re the people the worst people in Texas don’t like.

This law certainly won’t survive a constitutional challenge. But the state’s politicians are playing with other people’s money. It will never cost them anything (perhaps not even their reputations) to bring bills like this to draw cheers from the most craven of the constituents. And it will cost them nothing personally to defend indefensible legislation in court.

In the end, they get to walk way with the love of people who love hating anyone they don’t immediately understand, which tends to translate into votes. And any loss they receive in court will be greeted as, at the very least, a Pyrrhic victory that further exposes the inherent untrustworthiness of any form of constitutionally-guaranteed check/balance that was erected for exactly this reason: to prevent legislators from engaging in their basest impulses.

This bill is going to pose problems for things Texans love. As a longtime resident of El Paso, I can state affirmatively there was a general public thirst for strip clubs and other forms of, shall we say, “alternative” adult entertainment. Most of the strip clubs got pushed to the outskirts of town, but a very long strip of Montana Street housed nothing but strip club after strip club for years, providing a one-stop shop for simulated sexual activity for all the years I lived there. Perhaps this is still the case. Even if it isn’t, stripping is big business everywhere, even in Texas, and this bill inadvertently targets the sort of sexual activity politicians (and their big business benefactors) have traditionally enjoyed as part of free exchange of mutually beneficial ideas.

I can also say I cannot understand the supposed threat posed by drag shows. While it does make sense to prevent children from seeing sexually oriented shows, drag queens, in and of themselves, are not sexually explicit. As a nascent drinker, I spent a lot of time at one El Paso nightclub in particular: one that had a few extremely beneficial qualities. First, the doormen rarely carded anyone, which worked out for me because I was still 18 and the drinking age had been raised to 21 a few years earlier. Second, the club played a shitload of good techno and house music, which was in short supply in El Paso. And third, the house-heavy nights involved drag queen shows, none of which made me fear for my soul, my sexuality, or the future of the state. They were entertaining as hell, and were undeniably acts of personal expression — the sort of thing that has always been protected by the First Amendment.

To sum up: the people pushing and passing these bills are the worst sort of people. They’ve already decided certain humans are on a lower plane. And not only have they decided they’re simply better than some people, they’ve decided to use their power to punish the people they feel are worse than they are. At one point, we could have just hoped these social dinosaurs would soon be dead. But every day, younger and younger bigots are gaining power and inflicting their morality on others by weaponizing the very government that is supposed to representing the entirety of the governed, not just the people those doing the governing prefer to associate with. We wouldn’t put up with these bills if they appeared to obliquely target certain races, or women, or religious groups. We certainly shouldn’t tolerate them just because they target certain expressions of identity.

Filed Under: drag show ban, drag shows, texas