ACLU sues Tennessee district attorney who promises to enforce the state's new anti-drag show ban

NASHVILLE, Tenn. (AP) — Tennessee's first-in-the-nation law placing strict limits on drag shows is once again facing a legal challenge after a local district attorney warned Pride organizers that he intends to enforce the new statute despite a federal judge ruling the ban was unconstitutional.

The American Civil Liberties Union of Tennessee filed the lawsuit late Wednesday on behalf of a organization planning a Blount County Pride festival on Sept. 2. The ACLU is also representing drag performer Flamy Grant, who was hired to perform at the event. The plaintiffs are asking the federal court in eastern Tennessee to block the law from being enforced and declare it illegal.

Earlier this year, a federal judge in Memphis ruled that Tennessee's so-called anti-drag show law was “unconstitutionally vague and substantially overbroad,” and encouraged “discriminatory enforcement." The ruling was celebrated by LGBTQ+ advocates, but quickly sparked questions because the court declared the decision only applied to Shelby County, where Memphis lies.

While some legal experts have speculated that district attorneys across the state wouldn't enforce a law that a federal judge said violated the First Amendment, others, including state Attorney General Jonathan Skrmetti, were quick to point out that the law remained in effect outside of Shelby County.

The current tension is coming out of a rural county, some 395 miles (635 km) east of Memphis, where District Attorney Ryan Desmond sent a letter to Blount County Pride organizers this week announcing that he planned to enforce the state's anti-drag law.

“It is certainly possible that the event in question will not violate any of the criminal statutes," Desmond wrote. "However if sufficient evidence is presented to this office that these referenced criminal statutes have been violated, our office will ethically and justly prosecute these cases in the interest of justice.”

The letter was addressed to the Pride organizers, as well as the county mayor, law enforcement groups and other public officials.

The ACLU's lawsuit argues Desmond's letter was “a naked attempt to chill” free speech.

“Had Defendant Desmond merely wished to notify the public that he intends to enforce the (anti-drag law), he could have issued a public statement,” the lawsuit states. “Instead, he sent a letter targeting Blount Pride and the drag artists who are scheduled to perform.”

Desmond's office and the attorney general's office declined to comment on the lawsuit.

"Threatening to enforce this unconstitutional law amounts to a harmful attempt to remove LGBTQ people from public life, which is simply unacceptable," ACLU Tennessee legal director Stella Yarbrough said in a statement. “The court has made it abundantly clear that drag performance is constitutionally protected expression under the First Amendment, regardless of where in the state it is performed.”

In conservative Tennessee, drag performances and LGBTQ+ rights have increasingly been targeted by the Republican-dominant General Assembly.

The Legislature's GOP supermajority and Republican Gov. Bill Lee enacted the anti-drag show law in March. Many supporters said drag performances in their hometowns made it necessary to restrict them from taking place in public or where children could view them.

Notably, the word “drag” doesn’t appear in the new law. Instead, the statute changed the definition of adult cabaret in Tennessee to mean “adult-oriented performances that are harmful to minors.” Male or female impersonators are now classified as a form of adult cabaret, akin to strippers and topless, go-go or exotic dancers.

The law banned adult cabaret performances on public property or anywhere minors might be present. Performers who break the law risk being charged with a misdemeanor or a felony for a repeat offense.

Lee has since refused to weigh in on whether district attorneys should continue enforcing the law, saying he would defer to the attorney general.