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"But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scal

Erin Reed at Erin In The Morning:

Today, the 11th Circuit Court of Appeals upheld a lower court’s decision to temporarily block Florida’s drag ban, delivering a major blow to one of the state’s most visible anti-LGBTQ+ laws. The ban, which largely was drafted in response to a single venue—Hamburger Mary’s, a restaurant known for its vibrant, all-ages drag performances—had already prompted widespread self-censorship. Pride events were canceled, and venues across the state scaled back or eliminated drag shows altogether. In its decision, the appellate panel agreed that the law is likely unconstitutionally vague and infringes on First Amendment protections, reinforcing what critics have argued all along: this was a censorship bill cloaked in moral panic. “Florida’s Senate Bill 1438 (the “Act”) takes an “I know it when I see it” approach to regulating expression. The Act prohibits children’s admission to “live performances” that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most. And Florida’s his-tory of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court’s injunction against its enforcement,” wrote the majority opinion.

The law in question stems from Senate Bill 1438, cynically titled the “Protection of Children Act.” While Florida officials insisted the law wasn’t a drag ban but merely a restriction on “nudity, sexual conduct, or lewd exposure,” the 11th Circuit wasn’t buying it. The justices pointed to clear evidence that the bill was drafted and promoted with drag shows squarely in its crosshairs. “Though the Act applies to a range of ‘adult live performances,’” the court noted, “its enactors focused on how it would restrict one particular type of performance: drag shows.” When Gov. Ron DeSantis signed the bill, he made the target explicit, saying it was about cracking down on “adult performances… like those drag shows.” One of the bill’s sponsors went even further, calling it a way to “protect our children by ending the gateway propaganda to this evil—‘Drag Queen Story Time.’” The majority opinion also pointed to the state’s pattern of weaponizing the statute—and other state agencies—to target drag venues. “Florida has a history of efforts aimed at restricting drag shows and venues,” the court wrote. Even before the law’s passage, the Florida Department of Business and Professional Regulation (FDBPR) had launched administrative proceedings to revoke liquor licenses from several establishments hosting drag performances. In one such case, the state accused a venue of violating laws against “lewd and lascivious exhibition in the presence of a minor”—despite the government’s own inspectors reporting that “agents did not witness any lewd acts.” The lawsuit was brought by Hamburger Mary’s, a restaurant with a long-standing tradition of hosting drag shows—ranging from family-friendly performances to more risqué shows geared toward adults. [...] The court ruled in favor of Hamburger Mary’s, finding that the law was likely unconstitutionally vague and overbroad. While the justices acknowledged that some performances may be more appropriate for adults than for minors, the statute’s vague prohibition on “lewd conduct” effectively operated as a catchall for anything the state deems objectionable—rather than adhering to the narrowly defined legal standards for obscenity.

A three-judge panel on the 11th Circuit Court ruled against Florida’s heinously bigoted drag ban law (SB1438).

See Also:

KTVI (Fox2now): Mo. bill could criminalize drag show performances in front of kids

#Rick Brattin #Missouri #Missouri SB295 #Anti Drag Show Extremism #Dragphobia #Drag #Drag Shows #Anti LGBTQ+ Extremism #LGBTQ+#Nick Schroer #Anti Trans Extremism #Prurient Interest

On Tuesday, the South Carolina State Board of Education will impose a centralized and expansive censorship regime on every K-12 school libra

Judd Legum at Popular Information:

On Tuesday, the South Carolina State Board of Education will impose a centralized and expansive censorship regime on every K-12 school library in the state. The new regulations could result in the banning of most classic works of literature from South Carolina schools — from The Canterbury Tales to Romeo and Juliet to Dracula. The rules were championed by South Carolina State Superintendent of Education Ellen Weaver, who is closely aligned with Moms for Liberty, a far-right advocacy group seeking to remove scores of books from school libraries.

The regulations restricting library books, which were first proposed by the State Board of Education in September 2023, would ban any instructional materials, including library books, that are not "Age and Developmentally Appropriate." The term "Age and Developmentally Appropriate" is defined as "topics, messages, materials, and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group." This definition is so broad and subjective that it could justify the removal of virtually any material.

Further, any library books (or other instructional materials) are automatically deemed "not 'Age and Developmentally Appropriate' for any age or age group of children if it includes descriptions or visual depictions of 'sexual conduct,' as that term is defined by Section 16-15-305(C)(1)." Critically, the regulations ban library books with any descriptions of "sexual conduct" whether or not those descriptions would be considered "obscene." Under the South Carolina law, a library book is not considered obscene if it includes descriptions of "sexual conduct" if it has "serious literary, artistic, political, or scientific value" or if the book, taken as a whole, does not appeal to a "prurient interest in sex." This means that classic texts that contain descriptions of sexual content, including The Bible and Ulysses, are not considered obscene.

The new South Carolina regulation refers only to Section 16-15-305(C)(1), which defines "sexual conduct" as "vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted," "masturbation," or "an act or condition that depicts actual or simulated touching, caressing, or fondling of, or other similar physical contact with, the covered or exposed genitals." Starting tomorrow, any book that contains any descriptions of "sexual conduct" that meets that sweeping definition is required to be banned from South Carolina schools, regardless of whether it has literary merit or would be considered obscene.

Similar language in an Iowa law "resulted in mass book bans affecting classics, 20th-century masterpieces, books used in AP courses, and contemporary Young Adult novels."

The enforcement of the new regulation is highly centralized. Any South Carolina parent with a child enrolled in a public K-12 school can challenge up to five books per month on the grounds that they contain descriptions of sexual content or are otherwise not age-appropriate. The school district board is then required to hold a public meeting within 90 days to consider the complaint. At the meeting, the school district board is required to announce whether or not it will remove the book. If the school district board decides not to remove the book, the parent can appeal to the South Carolina State Board of Education. After the State Board receives the appeal, it must publicly consider it no later than the second public meeting. If the State Board decides that the book should be removed, that decision is binding not only on the school district where the complaint originated by all K-12 schools in South Carolina. Any school employee who fails to comply with the bans will be subject to discipline by the State Board. The State Board is empowered to impose any punishment, including termination, that it deems appropriate.

[...]

Moms for Liberty's influence in South Carolina

Weaver is a close ally of Moms for Liberty, which has advocated across the country to remove books from school libraries. She appeared at the Moms for Liberty 2023 Joyful Warriors National Summit. "There is nothing more precious that God has created than the hearts and the minds of our young people," Weaver said. "And that is what the radical woke left is after. Make no mistake: saving our country starts with saving our schools."

South Carolina is set to impose a draconian and reckless book ban policy across every school library in the state.

This insanity is the handiwork of far-right Moms For Liberty-aligned extremist Superintendent of Education Ellen Weaver.

#South Carolina #School Libraries #Book Bans #Book Banning #Censorship #Education #Schools #South Carolina State Board of Education #Prurient Interest #Ellen Weaver #Moms For Liberty

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

#fifth circuit court #ken paxton #drag bans #define obscenity #prurient interest

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.

#Drag #Drag Shows #Prurient Interest #Anti Drag Show Extremism #Friends Of George's v. Mulroy #Tennessee SB3 #Montana HB359 #Florida HB1423 #Texas SB12 #Drag Bans

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.

#Anthony Comstock #Comstock Act #Matthew Kacsmaryk #Alliance For Hippocratic Medicine v. FDA #Prurient Interest #Mifepristone #Birth Control #Miller Test #Miller v. California #Roe v. Wade #Barron v. Baltimore #New Yor Society For The Suppression Of Vice #American History #Censorship #United States v. One Package of Japanese Pessaries #Regina v. Hicklin

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.

#Arkansas SB43 #Prurient Interest #Anti Drag Show Extremism #Anti LGBTQ+ Extremism #Drag Shows #Arkansas State Senate #Arkansas #Anti Trans Extremism #Transgender #Three Article Rule #Drag Queen Story Hour #Drag Bans

Cyber Seduction: His Secret Life (2005)

#cyber seduction #wonderbra #pop-ups #prurient interest #vaporotica

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:

And now, this puritanical law is back in vogue with the anti-abortion right wing.

[...]

Much of modern-day constitutional law was developed in opposition to Comstockian censorship

“Ironically and significantly,” Werbel claims, “Comstock can be credited almost single-handedly with instigating the foundations of a First Amendment Bar.”

Read the full article at Vox.

#prurient interest

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