Last week, in response to a procedural action by the United States Supreme Court, Tennessee’s fine attorney general said, “Free speech is a sacred American value, but the First Amendment does not require Tennessee to allow sexually explicit [drag] performance in front of children.” More to the point, I say the First Amendment has nothing to do with the criminalization of these kinds of performances.
As with the First Amendment’s religion clauses, the United States Supreme Court has made a mess of the amendment’s Free Speech Clause. Today I’ll touch on one aspect of that mess, though there are others of greater significance that I will cover in my God, Law & Liberty podcast this Friday.
The First Amendment states in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances.
The first obvious question is how a clause that appears to place four prohibitions on Congress now applies to the law of a state, but that is for another day. The Supreme Court created a mess on that point as well.
What the Clause Does and Does Not Address
The meaning of the clause was made clear by Joseph Story, a legal scholar on the United States Supreme Court in its formative years and author of the first comprehensive commentary on the United States Constitution, published in 1833. In his Commentary, he wrote that the so-called “Free Speech Clause” in the First Amendment “respects the liberty of the press.” Drag shows don’t seem to fit within that category, but for the sake of argument, let’s pretend it does.
Speech, as such, as distinguished from printed materials, comes into play in this way: “[T]he language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint.” (Emphasis supplied). In other words, I don’t have to have a license from the government approving my speech on some subject. I can buy a microphone and start a podcast!
Moreover, the long history Story provides behind the clause’s inclusion of the First Amendment makes it clear that it was never “intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor.”
Just so you know, Story was not alone in his understanding of the clause. Early American jurists such the esteemed James Kent concurred in Story’s construction of it.
What Does Conduct Have to Do with Speech?
Nothing, except several decades ago the Justices on the United States Supreme Court wrote an essay in favor of one of its judgment saying conduct can equal speech. Lawyers and the press have gone along with it ever since.
So, apart from that essay, which was not ratified as text to the Constitution, drag shows should never be considered speech, unless someone wants a stage to speak to an audience about a “drag anthropology.”
Is the Criminal Statute a Prior Restraint?
Even if conduct equating to SCOTUS-defined “speech” comes within the ambit of the clause, there is no prior restraint by the government in this situation.
After the fact, however, a district attorney can decide if the “speech” went too far. If so, he can present the matter to a jury for its members to decide whose view of the “speech” is correct—that of the district attorney or the performer. So, dragsters simply need to perform their speeches wisely!
To paraphrase what Second Amendment advocates say of the salutary effect armed citizens can have on society, a criminal law that protects children from animated anthropological displays that debase the God-given dignity of men and women as such helps helps create a more polite society. I’m all for that!
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