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June 26, 2023 - MoFo Pro Bono

MoFo Provides Critical Support to Drag Artists’ First Amendment Right in Tennessee’s “Drag Ban” Ruling

MoFo Assists CASE Force with Implementation of US$1 billion California Rebuilding Fund; includes 778 funded loans totaling US$50 million given to small businesses

On June 2, 2023, a federal judge determined that a Tennessee law aimed at restricting drag shows is unconstitutional—a timely initial victory for MoFo, which played an important supporting role in the case, as well as for the LGBTQ+ community.

The Tennessee statute, commonly referred to as a “drag ban,” prohibits “adult cabaret entertainment” including by “male or female impersonators,” on public property or anywhere children could see it, if the performance is deemed “harmful to minors” by the state. While the law does not explicitly refer to drag, the law’s lead sponsor made it clear that he was targeting drag shows that might be viewed by children. He had previously led an effort to block a drag show in a public park in his district that he hadn’t even seen, one incident among several that supported the court’s finding that the law was enacted for the impermissible purpose of chilling drag performers, rather than the stated purpose of protecting minors from potential harm.

MoFo supported Memphis firm Donati Law, PLLC in representing a drag-centric theater company, Friends of George’s, whose performances are generally open to all members of the public. Prior to MoFo’s involvement, Donati Law had won a temporary restraining order preventing the statute from taking effect, and it requested MoFo’s help to prepare for trial on an expedited schedule. New York litigation partner Katie Viggiani led the MoFo pro bono team including New York associate Victor Lopez, San Francisco associate Rachel Dolphin, and Washington, D.C. associate Shelby Teeter.

The law would have greatly impacted drag artists, such as Friends of George’s, and other impersonators, as they risked criminal liability for breaking the law, including a misdemeanor or felony charge depending upon the number of offenses. The judge cited the example of a female impersonator wearing an Elvis Presley costume and mimicking the musician who could be at risk of violating the drag law because they would be deemed a “male impersonator.”

The ruling that the “drag ban” law is unconstitutional upholds the First Amendment right to freedom of speech in artistic expression, including by our client, Friends of George’s. Especially meaningful to MoFo, including Katie Viggiani and her team, the ruling is congruent with MoFo’s inclusive culture, respect for diverse people and ideas, and core belief that our differences make us stronger.

“We’re thrilled with the Court’s findings,” Katie stresses. “The law at issue had a demonstrable chilling effect on drag performances in a state where gender identity and gender expression have been repeatedly under attack. I’m extremely proud of the team at MoFo who provided critical support to the civil rights lawyers on the ground in Tennessee who achieved this tremendous result.”

To learn more about MoFo’s pro bono efforts, visit our Pro Bono page.