Don't Be A Drag: How Drag Bans Can Violate the First Amendment
33 Tulane Journal of Law & Sexuality (forthcoming 2023-2024)
38 Pages Posted: 19 May 2023 Last revised: 9 Jun 2023
Date Written: May 5, 2023
Drag is currently under attack in the United States, and anti-drag violence is increasing. As part of the attack on drag, state governments across the country are attempting to ban or restrict drag performances. At the root of these restrictions and oppositions to drag is ultimately lawmakers’ disapproval with the inherent message drag sends: that gender nonconformity is okay. This Note makes the argument as to why drag is expressive conduct that inherently contains a viewpoint on gender norms. Then, by pulling themes from recent anti-drag legislation, this Note lays out the relevant First Amendment tests and then applies them to drag restrictions to analyze whether these restrictions pass constitutional muster. It argues that while some types of drag performances may be constitutionally restricted, such restrictions would ultimately only cover a small amount of what drag can be.
Drag can and has moved audiences and liberated individuals. It spreads a message of love and acceptance across the country and the world. People do not have to agree with that message or expression, including government officials. But, if the Supreme Court has made anything clear in its First Amendment cases, it is that the government cannot prohibit expression just because it disagrees with the message. Drag artists should continue to share their art and spread their messages, reaffirming our country’s commitment to freedom of expression.
Suggested Citation: Suggested Citation