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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.