675 F.Supp.3d 831
W.D. Tenn.2023Background
- Tennessee enacted the Adult Entertainment Act (AEA) in 2023, criminalizing performance of “adult cabaret entertainment” (including “male or female impersonators”) on public property or anywhere it "could be viewed by a person who is not an adult."
- Friends of George’s, Inc., a Memphis nonprofit that produces drag-centric, often all-ages performances at the Evergreen Theater, sued under 42 U.S.C. § 1983 pre-enforcement, alleging First Amendment violations; the court issued a TRO and consolidated the merits trial with the preliminary-injunction hearing.
- The AEA borrows the statute’s “harmful to minors” definition from Tenn. Code § 39-17-901 (a Miller-style three-part test), but it lacks an explicit scienter provision, affirmative defenses (e.g., parental consent), and shifts criminal liability onto performers rather than operators.
- The court found the legislative history repeatedly referenced drag, “male or female impersonators,” and age-restricted venues; the history and text suggested an impermissible purpose targeting expressive conduct associated with drag.
- The court held Friends of George’s had organizational standing for a facial overbreadth challenge (associational standing failed for lack of a named injured member), applied strict scrutiny, and concluded the AEA is a content- and viewpoint-based, vague, and substantially overbroad statute.
- Remedy: the court declared the AEA unconstitutional and permanently enjoined Shelby County District Attorney Steven J. Mulroy from enforcing it within Shelby County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper defendant | Sued state actors; enforcement by county DA subjects him to suit | Only official-capacity relief is appropriate; Ex parte Young permits official-capacity injunctive relief | DA Mulroy in official capacity is proper defendant; individual-capacity claims dismissed |
| Standing | Organization has organizational standing (injury from chilling, certain threat of prosecution); may assert third-party interests under overbreadth doctrine | No named injured member so associational standing fails; contest scope of threatened enforcement | Organizational standing satisfied for pre-enforcement facial overbreadth challenge; associational standing failed |
| Standard of review (content vs. secondary-effects) | AEA targets protected expressive content and performers (drag) — content- and viewpoint-based → strict scrutiny | Statute addresses secondary effects (child protection) and creates adult-only zones → intermediate scrutiny under Renton | Statute is content- and viewpoint-based; legislative history shows impermissible purpose; secondary-effects doctrine does not apply; strict scrutiny governs |
| Narrow tailoring / least restrictive means | Not narrowly tailored; criminalizes performers broadly, lacks scienter/defenses, very broad geographical scope | Statute is least restrictive because performances can occur anywhere that cards at the door / age-restricted venues | Fails strict scrutiny: state interest compelling but AEA not narrowly tailored or least restrictive |
| Vagueness ("harmful to minors") | Standard vague across ages (5–17); chills protected speech; akin to COPA ruling | Tennessee precedent (Davis-Kidd) narrows “harmful to minors” to a reasonable 17‑year‑old; statute can be construed | AEA’s incorporation of §39-17-901 is unconstitutionally vague in context, Davis-Kidd narrowing not controlling here |
| Substantial overbreadth | Criminal penalties and broad location language chill substantial protected speech (drag, festivals, theater) | Statute’s scope limited to locations where minors may permissibly view; many legitimate applications exist | AEA is substantially overbroad in relation to its legitimate sweep in Shelby County |
| Remedy sought | Declaratory judgment and permanent injunction against enforcement in Shelby County | Argues narrowing constructions/constitutional avoidance; otherwise defend statute | Court grants declaratory judgment and permanent injunction enjoining enforcement by Shelby County DA |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (facially content-based regulations trigger strict scrutiny)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine and relaxed standing for First Amendment facial attacks)
- United States v. Williams, 553 U.S. 285 (2008) (vagueness/overbreadth principles; caution against broad criminal statutes)
- Miller v. California, 413 U.S. 15 (1973) (obscenity test adopted for determining unprotected obscene material)
- Ginsberg v. New York, 390 U.S. 629 (1968) (state authority to restrict materials harmful to minors)
- Renton v. Playtime Theatres, 475 U.S. 41 (1986) (secondary‑effects doctrine for zoning adult businesses)
- Ashcroft v. ACLU, 535 U.S. 564 (2002) (limits on regulating indecent but protected speech)
- Brown v. Ent. Merchs. Ass'n, 564 U.S. 786 (2011) (protection of speech despite disagreement over content)
- Ex parte Young, 209 U.S. 123 (1908) (narrow exception permitting suits to enjoin state officers enforcing unconstitutional state law)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing principles; credible threat standard)
- Crawford v. United States Dep't of Treasury, 868 F.3d 438 (6th Cir. 2017) (pre-enforcement standing: substantial probability of engaging in conduct arguably protected and a certain threat of prosecution)