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Tipsheet

ACLU Accuses Small Towns of Trampling Over the First Amendment

AP Photo/Julie Yoon

The American Civil Liberties Union (ACLU) is demanding that several Iowa cities change ordinances targeting drag performance, claiming they are unconstitutional.

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The organization sent a letter to the cities of Carroll, Harlan, Mt. Pleasant, Polk City, and Webster City arguing that the terms “female impersonator” and “male impersonator” should not be classified as adult entertainment, since many of these performances are family-friendly.

The ACLU further insists that these ordinances are content-based restrictions on free speech and violate the US and Iowa Constitutions. The ordinances target “the speech of ‘male or female impersonators’ (or similar entertainment’) based on its communicative content,” according to the letter.

The group points out that “[e]ven a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys.”

Drag performances are expressive art forms that fall under First Amendment protections, the ACLU argues, further noting that “drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender rols.”

The ordinances are also unconstitutionally broad, the letter states. It “regulates ‘male or female impersonators, or similar entertainment’ as a prohibited ‘Adult cabaret’ without regard for whether any such speech or expression actually has a sexually explicit component.”

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Courts have struck down other similar laws that restrict speech in this fashion. The ACLU refers to Imperial Sovereign Court of Montana v. Knudsen, which concluded that bans on drag shows attacked protected expression. 

“To be clear, drag is not a synonym for obscenity, and many drag performances are family-friendly,” the letter states, also noting that the shows “are characterized by clothed performers singing, dancing, and performing comedy.”

The ACLU further notes that “Drag has been present in western culture dating back to Ancient Greek theatrical productions, and the earliest productions of William Shakespeare’s plays.”

Several states and localities passed measures restricting drag performances. It was a backlash to news reports about drag shows being held specifically for children. Videos circulating on social media showed scantily-clad performers dancing suggestively in front of children. In some cases, children were encouraged to place dollar bills in the dancer’s clothing, similar to a strip show.

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However, others argue that while these performances were inappropriate, most do not feature sexual content.

This does not seem like a hard problem to solve. Sexually suggestive performances, — regardless of whether they involve drag — should not be shown to children. It would be similar to requiring an individual to be 18-years-old to go into a strip club. However, the government should not explicitly ban all shows featuring people dressing as the opposite sex — especially if they are not overtly or covertly sexual.

These shows are not my cup of tea. But if there is no obscene content, the government should not bar people from enjoying them.

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