Drag Shows Are Not Protected Free Speech

Apr 14, 2023 by David Fowler

Drag Shows Are Not Protected Free Speech
I have watched with great interest and a bit of amusement the controversy over drag queen shows, first in some of our cities and more recently in our state legislature. A federal district court has already prevented enforcement of the new state law regulating such shows on the ground that it violates the free speech provision of the First Amendment, in addition to being unconstitutionally vague. I firmly believe there is a solution to these constitutional challenges, but at present our state’s political leadership seems uninterested.

The Background to the Constitutional Problem

The problem we face with restricting or forbidding drag shows began in the last century when the United States Supreme Court became lawless, meaning it began to divorce its jurisprudence from any objective reality. 
First, in 1938, in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), the Court jettisoned God as relevant to law, denying there was any transcendent source for law as advocated by atheist justice Oliver Wendell Holmes. I explained this in my book, The Naked Court: Understanding and Resisting a Damnable United States Supreme Court.
Consequently, the Court began to depart from the common law, which had previously been understood as derived from an objective law rooted in the way the transcendent God of the Bible had created the cosmos, a true natural law. 
That kind of common law no longer makes sense in a cosmos devoid of God. That’s why it doesn’t make sense to most lawyers today, including many Christians who reject the concept or use of common law. Instead of the law being something outside of the judge but discoverable by him or her, the judge or the legislator became the “creator” of common law. (In this recent commentary I explained this wrong view of common law given by an attorney serving as a Republican member of the Tennessee House.)
Next, the Court began to interpret the Constitution without regard to the common law that had theretofore been understood to undergird, inform, and define the words and phrases in the Constitution. There are too many cases to cite as examples of this departure, but decisions holding unconstitutional state laws on strip clubs, flag burning, abortion, sodomy, marriage, and birth certificates readily come to mind. 

Application to Drag Queen Laws and Local Government Event Permits

The problem regarding drag queen shows is that we have willy-nilly agreed to let the United States Supreme Court interpret the word “speech” in the First Amendment to mean “conduct.” This is a rather recent “invention” by the Court. 
In 1974, going on two hundred years after the First Amendment was ratified, the Court said that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." Spence v. Washington, 418 U.S. 405 (1974) (emphasis supplied). Nevertheless, the Court held that the government had sufficient reasons to prohibit the burning of a draft card.
But, in 1989, free speech turned into “expressive conduct.” Texas v. Johnson, 491 U.S. 397 (1989). Burning the U.S. Flag was protected “speech.”

A Common Law Interpretation of the Constitution Should Stop Public Drag Shows

In 1991 a divided Supreme Court barely upheld the authority of local governments to regulate strip clubs. But in so doing, Justice Rehnquist’s plurality opinion explained the common law that should apply to a drag queen show’s claim that its conduct is protected by the First Amendment:
Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U. S. 507, 515 (1948). Public nudity was considered an act malum in se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K. B. 1664). 
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Note that public indecency at common law includes something less than nudity!
In sum, there is no way on God’s green earth (or even in the one Richard Dawkins believes in) that the Free Speech and Press Clause of the First Amendment, adopted in 1791, could ever be interpreted to protect what was a crime at common law.  
That, by the way, is the same rationale used by the Court in overturning Roe v. Wade: abortion was a crime at common law when the Constitution was ratified so the Constitution cannot be construed to protect it.

The History Behind the Free Speech and Press Clause 

I’ll close by quoting the history behind the Free Speech and Press Clause in the First Amendment given by one of the most esteemed jurists ever to serve on the United States Supreme Court, Joseph Story. In 1883, he published the first comprehensive commentary on the Constitution. This is what he wrote:
The next clause of the [first] amendment respects the liberty of the press. “Congress shall make no law abridging the freedom of speech, or of the press.” That this amendment was intended to secure to every citizen an absolute right to speak, or write, or printwhatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. . . .  Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance, to make up for the deficiencies of the law. . . . It is plum, then, that the 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, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government (emphasis added).

Application of the Foregoing

A right to “speak, write, and print” has no relationship whatsoever to a drag queen show, to nude dancing in strip clubs, or parading half-naked down our streets. Nothing in the First Amendment, interpreted according to its history and the common law, protects salacious conduct.
In this case, ignorance is not bliss. It is time we learn our history and get back to relying on the real common law on which our Constitution rests. The Dobbs case is waiting to be used by those willing to do so.[1]
Few so far seem to be interested in this approach, but I think I know how I could solve that. Perhaps this lesson in history and the Constitution would get more attention if I read it with the use of a bull horn while dancing under a public park pavilion in a mini-skirt and wig and wearing over-the-top makeup.  
It would be protected “speech,” right? And the press would eat it up.

[1] An equally important, if not more important, precedent for restoring a correct interpretation to our Constitution is New York State Rifle and Pistol Club v. Bruen, decided the day before Dobbs. It confirms that the common law is to be used to interpret the Constitution.

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