Case: Friends of George's, Inc. v. Mulroy

In 2022, Jackson Pride attempted to hold a family-friendly drag show in a public park, but the organizers were forced to move the show indoors and set age restrictions due to a lawsuit from Tennessee State Representative Chris Todd, where he stated that the performance was child abuse and that drag should be “nonexistent” in his community. In response, Todd introduced a bill to the Tennessee legislature banning “adult cabaret performance[s]” in front of minors, which he stated was intended to cover conduct like that which he “dealt with in [his] own community this past year,” referring to the drag show. On February 27, 2023, Tennessee’s governor signed House Bill 0009 into law, which made it a criminal offense to perform “adult cabaret entertainment” on public property or in a location that could be viewed by minors. (T.C.A. § 7-51-1407). The law defined “adult cabaret entertainment” to mean “adult-oriented performances that are harmful to minors,” including “male or female impersonators.” (T.C.A. § 7-51-1401). “Harmful to minors” was defined as content that the average person would find “to appeal predominantly to prurient, shameful or morbid interests of minors,” is “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors” and lacks literary, artistic, political or scientific values for minors.

In late March of 2023, Friends of George's, a theater company from Memphis, Tennessee, filed two suits in the U.S. District Court for the Western District of Tennessee to strike down the state's ban on drag performances. The first, filed on March 27, named the state and the Tennessee Attorney General, Jonathan Skrmetti, as defendants. The plaintiff additionally filed suit on March 30 against the District Attorney of Shelby County, Steven J. Mulroy. (While the cases were not formally consolidated until April 6, the court's decisions prior to that consolidation applied to the pair of cases together.) The law, which was set to take effect on April 1, 2023, had caused multiple LGBTQ+ organizations to cancel drag performances because of risks to their performers. The plaintiff sued under 42 U.S.C. § 1983 alleging that the law violated the First and Fourteenth Amendments. Specifically, the plaintiff argued that the ban was a speaker-based restriction subject to strict scrutiny and that the statute was vague, thus having the effect of chilling constitutionally protected speech. The plaintiff requested a temporary restraining order (TRO), a preliminary injunction, and attorneys' fees. The case was assigned to District Judge Thomas L. Parker.

On the same day as filing, the plaintiff moved for a TRO. The defendants countered that the plaintiff lacked standing to bring the suit and that the statute was a narrowly tailored, content-neutral restriction that should be subject to intermediate scrutiny, but the defendant consented to the TRO. As such, on March 31, 2023, the court granted the TRO. The court held that the plaintiff had standing because they had suffered the actual, concrete, and particularized injury of reasonable fear of criminal prosecution under the statute if they continue with their scheduled show in April 2023 without adding an age restriction. While causation and redressability was a closer question because of the lack of enforcement delegated in the statute, the court held that the unclear nature of enforcement chilled the plaintiff’s speech and should not stop the suit from going forward. For the TRO, the court held that there were three scenarios on which the plaintiff were likely to succeed on the merits. First, the court held that the statute was likely content-based, and therefore subject to strict scrutiny, because it targeted certain types of performances. Second, the court held that if the law was not facially content-based, then it may be a facially content-neutral regulation adopted because of “disagreement with the message” of the speech, which Representative Todd implied in his speech introducing the Bill recounting how he forced Jackson Pride to move indoors and apply age restrictions. If the law was adopted because of disagreement with the message, then it would also be subject to strict scrutiny, which it would likely fail. Third, the court held that the statute was likely vague and overbroad because the statute seems to limit drag performances everywhere, including private homes. The court held that the plaintiff proved irreparable harm because plaintiff faced criminal penalties or the chilling of their speech and that there was no substantial harm to the public in granting the TRO. Therefore, the court granted a TRO to stop the defendants from enforcing the statute. 2023 WL 2755238.

On April 6, 2023, the court formally consolidated the two cases because they shared common questions of fact and law. Additionally, the court acknowledged the defendants' consent to an extension of the TRO until May 26, 2023, and thus extended the TRO.

After the parties agreed to consolidate the preliminary injunction hearing with a trial on the merits, the court held a bench trial on May 22-23, 2023. After trial, on June 2, 2023, it issued its findings of fact and conclusions of law.  It held that, despite the state's compelling interest in protecting the psychological and physical wellbeing of children, the Act was an unconstitutional restriction on freedom of speech. Finding that plaintiff had standing to bring this lawsuit, the court applied strict scrutiny to assess the constitutionality of the Act.  Under that analysis, it concluded that the Act was not narrowly tailored to the state's interest in protecting minors, citing the Act's lack of affirmative defenses, silence on a scienter requirement, novel punitive scheme, and overbroad geographical scope.  It further held that the Act was unconstitutionally vague and substantially broad, failed to provide fair notice of prohibited conduct, encouraged discriminatory enforcement, and chilled "a large amount of speech." The court therefore declared the Act an unconstitutional restriction on speech and permanently enjoined its enforcement within the defendant's jurisdiction of Shelby County, Tennessee.  2023 WL 3790583.  On June 7, 2023, the court entered judgment in favor of the plaintiffs.  

District Attorney Mulroy filed an appeal of the district court's decision to the United States Court of Appeals for the Sixth Circuit on June 30, 2023. The case was assigned to a circuit judge panel of Danny J. Boggs, Alice M. Batchelder, and Julia Smith Gibbons. The defendants sought to appeal the district court's finding that the Adult Entertainment Act was adopted for an impermissible purpose. Several attorneys general of states with similar legislation filed an amicus brief in support of defendants on August 29, 2023. A local non-profit organization that advances the interest of LGBTQ+ people and a drag performer sought to intervene on September 8, 2023, after the Blount County District Attorney threatened to prosecute them if they followed through with their summer 2023 Pride festival. The intervenors then successfully obtained a temporary restraining order against a potential prosecution from the United States District Court for the Eastern District of Tennessee. 2023 WL 5662871. The Sixth Circuit granted the motion to intervene on September 15, 2023, the grounds of permissive intervention (rather than by right, because the district court's declaratory judgment applied only to Shelby County, the intervenors lacked standing).

This case is ongoing, pending the defendants' appeal.