Oct 15, 2024
A panel will decide whether to overturn a lower court ruling that a Texas law, criticized as an effective ban on drag shows, is unconstituti
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A panel will decide whether to overturn a lower court ruling that a Texas law, criticized as an effective ban on drag shows, is unconstituti
Republicans are losing their fight to ban drag — at least for now.
Ian Millhiser at Vox:
Last Friday, a judge in Knoxville, Tennessee, prohibited a prosecutor who threatened to bring criminal charges against drag performers at a nearby college from doing so. The prosecutor had planned to target the performers using a new state law that, among other things, lists “male or female impersonators” alongside “topless dancers, go-go dancers, exotic dancers, [and] strippers” as forms of speech subject to tight restrictions. Judge Ronnie Greer, the author of that decision, is a Bush appointee and the second federal judge appointed by Republicans to issue such an order in Tennessee. Greer relied heavily on Judge Thomas Parker’s opinion in Friends of George’s v. Mulroy, an opinion shielding drag artists in Memphis. Parker is a Trump judge. The question of whether a state can ban drag shows should not be controversial in a nation governed by the First Amendment. A state legislature may not ban standup comedy. Nor could it ban musical theater, kabuki, noh, koothu, or mime. Dressing in clothes conventionally worn by the opposite sex and satirizing gender norms is no less a protected form of expression than any other form of theatre.
And, to their credit, the courts have thus far agreed with this assessment of the Constitution. According to the Movement Advancement Project, a pro-LGBTQ think tank, two states, Tennessee and Montana, have enacted laws explicitly targeting drag performers. Four others — Florida, Texas, Arkansas, and North Dakota — have laws targeting “adult” performances that can be used to target drag shows and that in some cases have been used to do so. But these laws have not fared well in court. In addition to the two federal court decisions blocking Tennessee’s anti-drag law, federal courts blocked similar laws in Montana, Florida, and Texas. For now, at least, the First Amendment is holding firm.
That said, there’s no guarantee that judges will continue to protect free speech as these cases advance to higher (and more politicized) courts. As recently as last June, for example, there was strong consensus among federal courts that laws banning gender-affirming care for minors are unconstitutional. That consensus was recently broken, however, by anti-trans decisions in two federal appeals courts. Still, the First Amendment arguments against laws targeting drag performers are exceptionally strong. And it helps that most of these state laws are so poorly drafted that they should be struck down as unconstitutionally vague. It is fairly likely, in other words, that, at the very least, the current slate of amateurishly drafted anti-drag laws will continue to fall in court.
Most anti-drag laws are incompetently drafted
Most current state laws attacking drag are likely to fall in court simply because they are unconstitutionally vague. As the Supreme Court said in United States v. Williams (2008), a criminal law is invalid if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” This sort of vagueness abounds in state anti-drag laws. Take Florida’s law, for example, which makes it a crime to knowingly admit a “child” to an “adult live performance.” It also allows the state to revoke the operating or liquor license of establishments that violate this prohibition. Using this provision, the state has attempted to revoke an Orlando business’s liquor license after it hosted “A Drag Queen Christmas” show. The Constitution does allow states to restrict underage access to pornography, strip shows, and other highly sexual material. But even if drag performers were the same as strippers for First Amendment purposes (and they are not), Florida’s law is far too vague for a “person of ordinary intelligence” to figure out what, exactly it bans. Among other things, the law bars children from any live show that depicts “lewd conduct.” But it provides no definition of that term.
Similarly, Montana’s anti-drag law purports to ban drag performances at public libraries, in public schools, or on any public property “where the performance is in the presence of an individual under the age of 18.” But its definition of who counts as a drag performer is ridiculously vague. The law defines a “drag queen” as anyone, male or female, “who adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.” It also applies a similarly broad and vague definition to “drag kings.” How on earth is a judge supposed to determine whether a character is sufficiently “flamboyant” to trigger this statute, or whether their costume is too “glamorous?” Montana’s law is also so broad that it likely runs afoul of the Supreme Court’s warning that “a law may be overturned as impermissibly overbroad because a ‘substantial number’ of its applications are unconstitutional” under the First Amendment. Flamboyance, parody, glamour, and exaggerated costumes are hardly limited to drag shows — they are, in fact, some of the most common elements in performances of all kinds.
And then there’s Tennessee’s law. It defines any show that is “harmful to minors” (a term that the statute, at least, defines) and that features “male or female impersonators” as a form of “adult cabaret entertainment,” and then it bans this form of entertainment in any location where it “could be viewed by a person who is not an adult.” First off, let’s talk about the law’s use of the word “could.” Literally any performance “could” be viewed by someone who is not an adult. If a venue cards patrons to make sure they are over 18, an underage person could still sneak in a back door or trick the bouncer with a fake ID. Similarly, if someone decides to host a drag performance in the privacy of their own home, a local child “could” still conceivably walk by the home and catch a glimpse of the show through a window.
Vox's Ian Millhiser has some solid analysis on why drag show bans/restrictions will likely be quashed on 1st Amendment grounds.
Anthony Comstock, the 19th-century scourge of art and sex, is suddenly relevant again thanks to Donald Trump’s worst judge.
Ian Millhiser at Vox:
The Comstock Act, an 1873 federal law signed by President Ulysses S. Grant, is a relic of an era when free speech, medical privacy, and other rights that modern-day Americans take for granted effectively did not exist.
Nearly every word of this law, which is named after the Gilded Age anti-sex crusader Anthony Comstock, is unconstitutional — at least under the understanding of the Constitution that prevailed for nearly all of the past 60 years. The Comstock Act purports to make it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” or to mail any “thing” for “any indecent or immoral purpose” — vague words that inspired a century of litigation just to determine what concepts like “obscenity” actually mean.
And now, this puritanical law is back in vogue with the anti-abortion right wing.
A Trump-appointed judge who recently attempted to ban mifepristone, a drug used in more than half of all abortions in the United States, wrote an opinion that repeatedly cites a provision of the Comstock Act that also purports to ban “every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” from being mailed.
Anthony Comstock, who died in 1915, never held high government office. The only federal office he ever held was an appointment as a postal inspector — a law enforcement position that gave him the power to enforce the law that bears his name. Yet wielding this office and using the authority given to him in his primary job as secretary of the New York Society for the Suppression of Vice (NYSSV), Comstock became the scourge of artists, authors, birth control activists, abortion providers, and pornographers.
At the height of his power, in 1883, Comstock successfully brought charges against an art gallery owner who sold high-quality reproductions of famous nude paintings — including Alexandre Cabanel’s masterpiece The Birth of Venus. A court deemed the paintings to be criminally obscene, and the art was seized.
Worse, Comstock pursued providers of abortions and birth control with a religious zeal that bordered on homicidal. In 1878, after Comstock had Madame Restell, a well-known abortion provider, arrested for the crime of selling contraceptive pills, the 67-year-old Restell died by suicide. As law professor Geoffrey Stone wrote in his 2017 book Sex and the Constitution, “Comstock later boasted that Restell was the fifteenth target of his investigation to commit suicide.”
Not long after Comstock’s death, federal courts began to limit the scope of his law. And the law has largely lain dormant for half a century, suppressed by a pair of Supreme Court decisions handed down the same year: Miller v. California (1973), which drastically limits the government’s power to prosecute obscenity, and Roe v. Wade (1973), the now-defunct decision protecting abortion rights.
[...]
While Comstock was still alive and arresting booksellers and gallery owners, many American courts followed the “Hicklin test,” named after an English court’s decision in Regina v. Hicklin (1868), which gave the government broad discretion to prosecute materials it deemed to be obscene. The Supreme Court endorsed this Hicklin test in Rosen v. United States (1896).
[...]
Much of modern-day constitutional law was developed in opposition to Comstockian censorship
Werbel argues in her book that “the sheer, massive volume of cases initiated by Comstock” dramatically accelerated the development of numerous areas of US law, including “separation of church and state, protection from unwanted search and seizure, the right to privacy, and freedom from entrapment,” by forcing lawyers to flesh out concepts of individual rights that were underdeveloped before Comstock started prosecuting publishers, artists, and health providers.
“Ironically and significantly,” Werbel claims, “Comstock can be credited almost single-handedly with instigating the foundations of a First Amendment Bar.”
Just days after Comstock died — and decades before Supreme Court decisions like Roe and Griswold v. Connecticut (1965) formally recognized a constitutional right to reproductive health care — the US Court of Appeals for the Seventh Circuit held that the Comstock Act must be given a “reasonable construction” to permit physicians to advertise that they will perform lifesaving abortions. Similarly, in a particular influential decision handed down a generation later, the Second Circuit concluded in United States v. One Package of Japanese Pessaries (1936) that the Comstock Act should only be read to ban items used for “unlawful” abortions from the mails.
Based on these and similar decisions, the Justice Department recently concluded that the Comstock Act, as construed by the courts, “does not prohibit the mailing of” common abortion drugs such as mifepristone “where the sender lacks the intent that the recipient will use them unlawfully.” So, at the very least, no one should be prosecuted under the Comstock Act for mailing an abortion medication to a recipient in a state where abortion is legal.
By the middle of the 20th century, the Supreme Court took a similar approach to the Comstock Act’s provisions prohibiting so-called obscenity — reading the law narrowly rather than striking it down in its entirety. A key turning point was Roth v. United States (1957), which abandoned the Hicklin test in favor of a new rule.
The Comstock Act was named after Anthony Comstock, who used his powers as a postal inspector to arrest and criminalize mailings of abortion, birth control, and other vices during the late 1800s and early 1900s.
Read the full article at Vox.
Arkansas has passed SB43 through its senate. This bill would ban "exhibiting a gender identity different from your assigned gender at birth" while performing and "prurient," a vague term.
Erin Reed at Erin In The Morning Substack:
Standing at the podium debating against an anti-trans drag bill that had just entered the Senate floor for a vote, Senator Clark Tucker spoke out forcefully. “Will this apply to a gay pride parade? Probably so.” The bill, SB43, would ban people who are dressing and presenting as the gender that does not match their assigned gender at birth from performing in public or anywhere where kids can see them. Though intending to target drag, the bill also targets transgender people whose dress does not match their assigned gender at birth. It specifies that the law is only broken if it appeals to the “prurient interest,” a term that is unconstitutionally vague which could be targeted at any transgender person telling a joke, wearing a low cut shirt, or even just reading to kids. After an emotional debate, the bill was passed in the Arkansas senate 29-6 - it now goes to the Arkansas house, where if it passed, it could have profound impacts on the trans and drag communities.
SB43 is one of several bills that have been released targeting “drag queen story hours” and drag in general. States legislators differ in how they approach these bills, but in general, they have broad definitions of drag which include transgender people. Each one is ridiculously broad in its targeting. Nebraska’s bill says that people cannot “exhibit a gender identity different from the performer’s assigned gender at birth using clothing, makeup, or other physical markers.” West Virginia’s bill outright bans “transgender exposure” to minors as obscene matter with prison terms. Oklahoma’s anti-drag bill doesn’t even bother limiting it to trans people and in fact would ban anyone who “adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.”
Most, but not all, bills have a provision that specifies that the conduct is only illegal if it “appeals to the prurient interest.” The word “prurient” means sexualized in nature or appealing to sexualization. Consider, though, the context in which these bills are being passed. Drag queen story hours where a drag queen sits and reads to youth are the main driver of these bills.
[...]
Three articles laws that mandated people wear three articles of clothing associated with their assigned gender at birth echo in this resurgence of anti-drag bills here. If they are not defeated, transgender people and drag performers will have to navigate a complex web of local morality and a rise in oppressive anti-trans militancy. Until then, we can only watch as the far right threatens to end all of our rights.
Anti-drag bill Arkansas SB43 harkens back to the dark days of the three-article rule and has an expansive definition of the term “prurient interest” used in a vague and capricious manner that would basically eliminate drag shows in Arkansas. Trans people are also targeted with these bills.
Cyber Seduction: His Secret Life (2005)
Science discovers that people are attracted to different things, sky is blue
Isn't it wonderful to live in this modern progressive era, when science is continuously blasting holes through the dark shroud of ignorance, scattering the nattering demons of superstition? Why, just take a look at this amazing 2009 study that finds that men who say that they like fat women may, in fact, like fat women. As opposed to, I suppose, lying that they like fat women in some sort of bizarre, masochistic attempt to bed the very women that they despise. A new study in The Journal of Sex Research shows that men who self-identify as "fat admirers" not only find overweight women exceedingly attractive, they have an more robust appreciation of feminine beauty than men who don't identify that way. The former men (dubbed FAs) and latter were both shown 10 pictures of women of various body types and asked to pick the woman they found most attractive and to identify the heaviest and thinnest women they found attractive. The study's first conclusion is pretty obvious -- fatty lovers love fatties -- but the second one is actually rather interesting. As some of you may know, I love me some fat ladies, so this study proves that I am a sensitive new-agey guy who loves women of all sizes as evidenced by the fact that I sensitively refer to larger women as fat. I've been pretty critical here of fat fetishists who like to go on about how their preference for larger women makes them more enlightened than men who prefer smaller ones when, in reality, they're still demanding that women conform to some arbitrary standard. Well, I guess this study really puts me in my place! Turns out that the fat lovers really ARE more enlightened -- or at least as enlightened as you can claim to be based on the inscrutable and uncontrollable demands of your cock. As some of you also know, I'm married to a woman who isn't very fat at all. In fact, she's quite svelte. And one of the problems with my being so vocal about my love of larger women is that she's often skeptical when I tell her that I still find her attractive. However, she's a big LIBERALLY ATHEISTY SCIENCEY PERSON who would probably be posting on Pharyngula about how her BIG FAT PhD means she's not really arrogant if she wasn't too busy forcing schoolchildren to gay marry Wiccan stem cells. The point is that while she doubts the word of the man that she married and who is theoretically her LIFE SOUL MATE, there is no way that she can doubt the findings of SCIENCE. Science has confirmed the turgidity of my penis. Check and mate! The researchers theorized that fatty fetishists found a broader rage of women attractive because "once those men has rejected 'sociocultural norms of attractiveness' by self-identifying and being involved as FAs, they were more readily accepting of a wider range of female beauty." That may well be. I'm no scientist, but, having spent some time amongst the fatty fetish community*, I'd wager the real reason is more likely that they felt ashamed for liking larger women and so tried to balance it out by pretending to like smaller women as well, because that's the sort of dumb shit they pull. Half the posts in every fatty fetish community consist of mewling about how ashamed they are of liking larger women because society totally looks down on and oppresses them, man.** Also, posts about how liking fat women is totally comparable to being gay, because remember all those guys who got beaten to death by rednecks for liking chunky chicks or how California passed that proposition to disallow different-weight marriage? The post also mentions a Fox reality show that seeks to deal with America's weight issues with a dignified and sensitive public mockery. The Jezebel post finally clears up my big lingering question from when I first heard about the concept for this show: Is it pairing fat men with fat women? Because the initial description that I read seemed to imply that it was pairing fat women with "men who would appreciate them" (because, you know, the attention of a man is what you ladies really need to validate your existence, am I right?) but it also hinted that it would be pairing them with fat men, apparently under some weird delusion that BEING FAT meant that you were also automatically attracted to other fat people. This is not necessarily true, as evidenced by the fact that about 99%*** of all FAs are pasty, scrawny nerds. But, I dunno, maybe pairing people of different weights would amount to some new and exotic form of miscegenation that would offend prominent Fox money maker Bill O'Reilly or something. Everyone knows that fat/thin pairings are only acceptable if you're talking about a fat bumbling manchild and his inexplicably hot long-suffering wife, as seen Tuesday nights on our HILARIOUS NEW SITCOM! IF YOU LIKED THE SIMPSONS, YOU'LL LOVE THIS SHOW BECAUSE, JUST LIKE THE SIMPSONS, THIS SHOW IS ALSO ON TELEVISION! * - who all flip conniptions if you describe their proclivities as a fetish rather than a unique and delicate sexuality. **- The other half consist of surreptitious up-skirt camera phone photos of chubby pubescent girls on their way to dance practice. Hey, ladies, do you like having your privacy violated and the results posted on the Internet? You'll like it even more when it's accompanied by the caption "GODDAMN THAT ASS IS SO FAT *MOVES HAND TO DICK*" *** - Totally accurate statistics provided by the US Department of My Ass
Lately I keep having bizarre dreams involving former sexual partners of mine. Is this the universe's way of reminding me that I really need to get laid?