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Despite all the talk, no states have active laws banning drag in front of kids

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LITTLE ROCK, Ark. – In states across the country this year, Republicans have talked a lot about restricting drag performances in front of children. But that talk, and even their efforts, haven’t amounted to much. Bills restricting drag have failed to pass, passed as watered-down laws, have been vetoed or, in the case of three states that did manage to pass meaningful restrictions, laws have been temporarily halted by federal judges. Friday, in fact, a judge temporarily blocked a law in the last remaining state with enforceable restrictions – Montana – just days before the start of Pride festivities. A few states’ lawmakers are still in session, though, so more efforts could be afoot. In Arkansas, where Republican state Sen. Gary Stubblefield championed and sponsored a bill earlier this year, he said drag shows harm kids and “take away their innocence.” “I can’t think of any redeeming quality, anything good that can come from taking children and putting them in front of a bunch of grown men that are dressed like women,” Stubblefield said back in January as he introduced his bill on the floor of the Arkansas Senate.

‘Prurient interest’ and the First Amendment

Stubblefield’s bill contained key language that showed up in a lot of states’ attempted drag restrictions – an appeal to the “prurient interest.” (Texas, Tennessee, Montana, Arizona, South Dakota, for example.) “That word – prurient interest – means excessive interest in sexual matters,” Stubblefield explained to lawmakers in committee. “Most drag shows do not appeal to the prurient interest,” says JT Morris, an attorney for the free-speech group Foundation for Individual Rights and Expression. “Even if they did, saying something appeals to the ‘prurient interest’ under the First Amendment is not enough to regulate it,” he says, noting that this kind of language makes it harder for a bill to hold up to basic legal scrutiny. “You can’t pass a state law based on disagreement with somebody’s viewpoint. It’s a textbook First Amendment violation.” And that disagreement has been palpable across the country. In Arkansas, Stubblefield’s bill was met with large public backlash from those who say drag is about showmanship, not sex. “I do drag as an art form,” says Jeremy Stuthard, an Arkansas drag performer. “I take a decent-looking guy and turn him into a statue-esk Barbie doll, and have a great time and put smiles on people’s faces and that’s all I really try to do.” Stuthard says most of the children he meets at drag brunches and story hours aren’t there to indulge a ‘prurient interest’, but to have fun listening to a story read by a costumed actor.

Drag restrictions put on hold and watered down

In Tennessee, the day before that state’s drag restrictions were due to go into effect, a Trump-appointed U.S. District Judge temporarily struck down the law due to its constitutional vagueness. In his ruling, U.S. District Judge Thomas Parker wrote, “Whether some of us may like it or not,” the U.S. Supreme Court has interpreted the First Amendment “as protecting speech that is indecent but not obscene.” A similar law in Florida has been temporarily blocked. For a while, that left Montana as the only state in the country with an enforceable drag law, until the courts temporarily blocked that one, too. In Arkansas, Sen. Stubblefield’s drag ban bill was amended until it hardly resembled a drag ban. The final version of the law, which passed by large margins, now regulates stripping, not drag shows. “[The]Amended House Bill is the only way to really protect minors. For another reason, it’s the only draft that will stand up in court,” Stubblefield said of the amendment, which he didn’t write but ultimately agreed to. “None of us like to pass a bill that’s going to get struck down by a judge and not help any children at all.”
Josie Lenora is the politics/government reporter at KUAR in Little Rock, Ark.
Copyright 2023 Little Rock Public Radio. To see more, visit Little Rock Public Radio.
Transcript : SCOTT DETROW, HOST: Republicans have talked a lot about restricting drag performances in front of children this year, but that talk and most of those efforts haven’t amounted to much. Anti-drag bills across the country have failed, been vetoes, been watered down or temporarily blocked. Josie Lenora from member station KUAR in Little Rock looks at some of the reasons why. JOSIE LENORA, BYLINE: In Arkansas this year, a bill that would have been drag performances in front of children was met with large public backlash. Republican State Senator Gary Stubblefield championed and sponsored the bill. Here he is back in January talking about how he thinks drag performance could harm children and take away their innocence. (SOUNDBITE OF ARCHIVED RECORDING) GARY STUBBLEFIELD: I can’t think of any redeeming quality, anything good, that can come from taking children and putting them in front of a bunch of grown men who are dressed like women. LENORA: The bill Stubblefield sponsored would have banned performances in front of children that involved cross-dressing and that appeal to prurient interest. That term, prurient, shows up in a lot of states’ bills on the subject. In committee, Stubblefield was asked by fellow lawmakers what the term means in a legal context. (SOUNDBITE OF ARCHIVED RECORDING) STUBBLEFIELD: That word prurient interest means excessive interest in sexual matters. LENORA: But critics feel the bill wouldn’t hold up to basic legal scrutiny. JT MORRIS: Most drag shows do not appeal to the prurient interest. Even if they did, saying something appeals to the prurient interest, under the First Amendment, is not enough to regulate it. LENORA: JT Morris is an attorney for the Foundation for Individual Rights and Expression, a pro-free speech group. Morris says drag bills are overly broad and could apply to many different kinds of performances. MORRIS: Well, you can’t pass a state law based on your disagreement with somebody’s viewpoint. That’s a textbook First Amendment violation. LENORA: And that could be one reason why, in at least 15 states, bills regulating drag performance died or were completely watered down on their way to becoming law. Three states did manage to pass restrictions. In Tennessee, a Trump-appointed U.S. district judge, Thomas Parker, temporarily blocked that state’s ban on drag performance in front of children due to the law’s constitutional vagueness. In a ruling, Judge Parker says, whether some of us may like it or not, the First Amendment protects even indecent speech. A similar law in Florida is temporarily blocked. For a while, the only state with a drag ban in effect was Montana. A judge temporarily blocked that one, too, clearing the way for drag events just before the start of Montana Pride. Jeremy Stuthard, a drag performer in Arkansas, says to him, drag is about showmanship, not sex. JEREMY STUTHARD: I do drag as an art form. I take a decent-looking guy and turn him into a statuesque Barbie doll and have a great time and put smiles on people’s faces. And that’s all I really try to do. LENORA: He says most children he meets seem to have a good time at drag brunches and story hours. STUTHARD: They listen, and they enjoy. And they have their little popcorn or the little candies or whatever they get during that time, and they just enjoy a story from an actor who happens to be in a costume. LENORA: Ultimately, the law regulating drag in Arkansas was amended until it hardly resembled a drag ban. Now the law, which passed by large margins, basically regulates stripping, not drag shows. Senator Stubblefield didn’t write the amendment, but he said he agreed to it after he spoke with Attorney General Tim Griffin. (SOUNDBITE OF ARCHIVED RECORDING) STUBBLEFIELD: The amended House bill is the only way to really protect minors. For another reason, it was the only draft that will stand up in court. None of us like to pass a bill that’s going to get struck down by a judge and not help any children at all. LENORA: In a statement, the attorney general of Arkansas says he routinely works closely with legislators to make sure bills are consistent with the U.S. and Arkansas constitutions. He says the final version of this law does protect children. For NPR News, I’m Josie Lenora in Little Rock. Transcript provided by NPR, Copyright NPR.
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