Can we prohibit drag shows for kids? No.

by Marc J. Randazza

Drag shows for kids.

I feel like Jake Blues when he says “Illinois Nazis” in the Blues Brothers. For “Pride Month,” a gay club in Dallas had an event called “Drag The Kids to Pride” in which drag queens performed sexualized dances for kids … not just teenagers, actual kids. This seems to be something widespread, nationwide.

If you bring your kids to one of these, you and I have no common ground when it comes to parenting.  Why would you would bring your kids to a sexualized performance of any kind?  That isn’t “pride.”  That is what the Conservative kids call “grooming.”  I’d feel the same way if you brought your kids to a strip club, even if the dancers remained fully clothed, but performed the same routines on stage. It’s not the sexual orientation of the shows that troubles me. This just isn’t something appropriate for kids.

Florida State Rep. Anthony Sabatini tweeted that he was considering legislation to make it a felony to bring your kid to such a show. I like Sabatini. I like where his heart is at here. But, I can’t agree with his idea.

Sabatini is not alone. Politicians across the country are capitalizing on this skirmish in the culture wars to propose or suggest state action to curb this trend.

Now for the hard part — so far, every limitation I have seen suggested will violate the First Amendment.  

The facts

The facts, as I understand them (and upon which my analysis is premised) are:  

1. Drag queens danced for parents and their kids. 

2. Kids got up on stage and danced, too. 

3. The dances were “sexualized” in nature.  

4. Kids were stuffing dollar bills into garter belts, and audience members were throwing dollar bills to the kids who danced.  

If I have any facts wrong, then my analysis might change.  

An important note here — I have heard no reports that any of these involved actual nudity nor actual sexually explicit conduct.  “Sexualized behavior” is different from sexually explicit conduct.  The government can regulate nude performances and sexually explicit conduct.  The government can not regulate “sexualized” expression that is merely in tremendously bad taste.     

Another thing to note: It seems irrelevant that these are “drag queens.” If the kids can’t see the performer’s genitals, I think it makes no difference what is under their g-string, or if their tits are real, enhanced, or just stuffed bras.

Fully clothed. Nevertheless, I think if you would put your kid in that seat, you’re fucked in the head.

Analysis – Definitional Problems 

The first problem I would have with trying to ban drag shows for kids is even defining “drag show” in a legally clear manner.  Set aside the constitutionality of the ban until later in this post.  Just try to define this.  

If you asked me to come up with a regulation that simply defined the problem and prohibited it — even in the absence of the First Amendment — I couldn’t do it.  Could you?  

Sure, we all “know it when we see it.”  I know exactly what you mean when you say “those drag shows with kids.”  The sight of a performer writhing on the ground with dollar bills being thrown into their crotch, twerking in a kid’s face, yeah … I can picture it. But can I actually define it in a way that wouldn’t eat up a lot of other expression?  Can we define it so that it wouldn’t be a tool in the hands of someone who would censor dance / performances that we like?  

How could you come up with a regulation that wouldn’t ban say, dressing up to go watch the Rocky Horror Picture Show?  Would the regulation sweep up even Halloween costumes?  How could you write it so that it did not?  Would the difference be whether there was dancing or not?  If so, would you be able to write a regulation tailored sufficiently that it only swept up the dance moves you’re worried about?  Would this just be an “anti-twerking law?”    Would it be limited to men dressed as women?  What about women dressed as men?  Or what about just women in bikinis dancing?  

Do you trust the government to make this decision? I do not.

In Cohen v. California, Justice Harlan wrote “we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 U.S. 15, 25 (1970).  

I do not trust the government to make this decision.  I trust the government even less if a government I trust today gets a tool of censorship in its hands, and then the regime changes.  Be careful. If you release poisonous snakes into your neighbor’s yard, they’re eventually going to slither into your yard.

Analysis – First Amendment

Dancing is First Amendment protected expression.  Even nude dancing is.  Judge Posner wrote that to say the contrary is “indefensible and a threat to artistic freedom.”  See Miller v. City of South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (concurring).  Most certainly, fully clothed (even if scantily clad) drag shows are dance protected.    

I think a reasonable person could call these performances “indecent.”  I call them that, but that’s just like my opinion, man.  Whether it is indecent or not, “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications v. FCC, 492 U.S. 115 (1989). See also Smith v. California, 361 U.S. 147, 150 (1959) (bookstores selling indecent materials); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (Indecent, but non obscene theater performances); Young v. Mini Theatres, Inc., 427 U.S. 50 (1976) (indecent motion pictures in a theater); Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (nude dancing).

But What About The Children?

The analysis does change a bit because kids are involved, but not enough to move the needle.  

The Supreme Court has held that “obscene” material is not protected by the First Amendment.  To be obscene, material must meet the Miller Test.  That test says we look at material in three parts:

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; 

2.  whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I can not imagine a principled judge not throwing out a regulation or a prosecution over a fully-clothed drag show.  Is merely twerking “patently offensive?”  Is it different because it is a man dressed as a woman?  It shouldn’t be.  To say these performances lack serious artistic or political value is to devalue those terms to being nearly worthless.  Most certainly they have “political value.”  That “political value” is the parents virtue signaling at how liberal they are.  It is absolutely an act of political speech and political expression.  Not expression I may approve of, but no parent brings their kid to this because they merely think the kid will have fun.  If that were the case, they’d park them in front of a guy with one of those great big bubble makers and throw ten bucks at him to entertain the kids.  These shows, and participating in them, is an act of political expression.  It is about as tasteful as a Pol Pot fan club meeting, but no honest person could say that these lack artistic or political value.  

When it comes to kids though, the standard can shift a little bit.  In Ginsberg v. New York, 390 U.S. 629 (1968) the Supreme Court upheld a variable standard when it comes to obscenity and kids.  In that case, the court upheld a New York law that prohibited providing materials containing nudity or sexual content to minors if there was monetary consideration. 

Aha! Have we found a way to prohibit this thing we dislike?  

Probably not.  

Ginsberg v. New York establishes that we can have a sliding scale of what is obscene.  Therefore, something that might not be “obscene” when sold to an adult can become obscene when sold to a minor.  (Ginsberg was decided before Miller, so I question even whether Ginsberg is still good law, but for the sake of this post, presume it is).  But, even in Ginsberg, the court recognized “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.”  

The rationale underlying Ginsberg is that parents get to raise their kids as they see fit.  “[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”  Ginsberg also cited to Prince v. Massachusetts.  “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  321 U.S. 158, 166 (1944).  

The philosophy here is that parents get to educate their kids on sexual issues as they see fit (short of molesting them, of course).  The logic reversed the polarity here — in Ginsberg, the issue was that no bookstore should be making the decision as to whether a 16 year old kid can have a pornographic magazine — but a parent could still make that decision for their kid.  You want your kid to have a copy of Hustler?  Have at it.  But, the local convenience store can be prohibited from selling it directly to him.  

Could Ginsberg be used to create another stratification in obscenity law?  

Maybe, but I think such a decision could be fraught with constitutional danger.  Let’s say a

Not Sexy Enough For You?

court said that since Ginsberg lets us create an “obscene as to minors” standard, we can create more layers in that standard.  Could we have an “obscene as to toddlers” standard?  At what age would we draw the line?  How would we draw it in such a way that it prohibited what we wanted to prohibit, yet left other speech unscathed?  Would it be “harmful to minors” to let kids watch Monty Python?  Why not?  Because when the Monty Python guys are dressed as women, they’re not sexy enough?   Is the standard “I’d hit that if it had a vagina?”  If so, aren’t we using the “prurient interest” as to adults in order to decide what kids can see?  

Conclusion

I have no issue with drag queens in general.  I think it is great that they exist.  I will have words with anyone who wants to bully someone else because they are an adult choosing to be a drag queen, or transsexual, or attend a drag queen show, or whatever.  Your life, live it the way you like.  It doesn’t hurt me, nor bother me, in the least.  (In fact, my firm proudly handles transsexual discrimination cases that even the big trans-advocacy organizations turn down).  I have no problem with “Drag Queen Story Hour” where drag queens simply show up and read books to kids.  (Although this one should be criminally charged).

How about now? Sexy enough to ban?

But this is not that.  Rousseau wrote “Childhood has its own ways of seeing, of thinking, of feeling; nothing is more absurd than wanting to replace them with our own.”

This absurdity is at a level that I think nobody could ever have predicted.  We have elementary school teachers seeking validation for their life choices and sexuality from their students.  We have woke-scolds trying to reinvent our language, and other peoples’ languages as well.   And now in what seems like an outright declaration of war on normality, sick people bringing their kids to watch and participate in sexualized drag shows.  

But that’s what liberty is.  You get to raise your kids the way you want, with the values you want.  

Restrictions on that are limited, as they should be.  Do I want people to bring their kids to these shows?  I would rather they not.  If my kid’s mom brought them to one, we’d be in custody court before she got home.  (Not that she would, but just sayin’).  If my kids had friends whose mom (it is always the moms) brought them to one, I’d seriously consider whether my kid should even associate with that kid in any way.  I wouldn’t have any problem with completely socially ostracizing any drag queen who performs like this for kids, nor with doing the same for anyone who runs a business that tolerates it.  

But I do not want the government involved.  The government that has the power to tell you that you can’t bring your kids to a non-nude, non-obscene, drag show can also tell you that you can’t bring your kid to see a performance that you like.  In fact, it isn’t a far slide down the slope to limitations on what you can teach your kids in church.  

Liberty isn’t easy.  It isn’t supposed to be easy. It isn’t supposed to be comfortable. Liberty means your fellow citizens get to enjoy performances and child-rearing ideas that make your skin crawl, sometimes. Liberty is supposed to be standing up for expression that you would convince every person to reject – while protecting their right to make that choice for themselves.

I find these shows to be troubling.   But, “if there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1989).

Yeah, Illinois Nazis, Texas Drag Queens, pornographers, Satanists, and even people who advocate putting pineapple on pizza have First Amendment rights. And even if you hate their use of those rights, to diminish theirs is to diminish your own.

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