Drag, free speech, and the First Amendment

What is drag?

Drag is an artform protected by the First Amendment in which performers embody a character through the exaggeration of femininity or masculinity using clothing and makeup — most often practiced by dressing up as the opposite sex — and typically involves entertainment or performance such as stand up comedy, lip syncing, singing, or dancing. Performers may utilize drag to convey political and social commentary, explore their sexual or gender identity, honor other artists by emulating them, or for the sole purpose of making the audience laugh.

If you’re wondering why that definition is so broad and vague, it’s because drag differs considerably from performance to performance, and is often subjectively determined by the performer and the viewer.

Why has drag been in the news recently?

Drag has become an increasingly visible form of expression, with drag shows occurring across the country and maintaining an audience on popular television shows like the reality show, “RuPaul’s Drag Race.” However, as drag shows have increased in popularity, so has the frequency of attempts to ban them. For example, this year both the Tennessee and Montana legislatures passed legislation limiting public drag show performances.

Drag, however, has existed for hundreds of years in many different forms. Definitions of drag are often overly broad, illustrating the difficulty of defining the term. Broad definitions of drag — including definitions that legislatures have adopted in an effort to ban drag — sweep in performances in which individuals cross-dress, as actors often did during the Shakespearian era when only men were permitted on stage.

Is drag obscene? 

Even most pornography does not meet the high standard for obscenity. In Miller v. California, the Supreme Court outlined a three-pronged standard that material must meet in order to be considered legally obscene:

• The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest” (a shameful or morbid interest in sex).

• The work depicts or describes, in a patently offensive way, sexual conduct.
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Note: This third prong is considered an “objective” standard and is judged by reference to national rather than community standards.)

If all three prongs are met, the material receives virtually no First Amendment protection in the jurisdiction where it is adjudicated obscene, and the government may regulate its transmission, communication, or sale. 

Given the Miller test, without far more than cross-dressing, a drag show constitutes protected expressive conduct, especially to the extent it has artistic, literary, social, and/or other value and intends to convey a particularized message.

Whether it be by using choreography to educate their audience about LGBTQ+ ballroom culture, showing admiration for ABBA through a lip sync, or doing an impression of Joan Rivers when comedically roasting other performers to remind viewers it’s ok to laugh at oneself — drag is rooted in expressive activity.

Is drag pornography? 

No, drag alone is not pornography.

Some pornography may include aspects of drag — like cross-dressing or exaggerated makeup — as part of a depiction of hardcore sexual conduct, and some drag may include such pornographic elements, but drag itself is not inherently pornographic. Most drag involves fully clothed individuals and depicts no sex acts.

However, even if particular expressions of drag may be pornographic, pornography — so long as it does not meet the exacting standard for obscenity, which in addition to depicting hard-core sexual conduct must be patently offensive and appeal to prurient interest while lacking serious value — is protected by the First Amendment and cannot be prohibited.

What about drag in public? Can the government restrict drag performances in public spaces?

Drag is expressive conduct protected by the First Amendment. Drag standing alone involves performances exaggerating femininity or masculinity, so without more — like indecent exposure — the government cannot prevent it from occurring in public spaces.

Even if there are in some cases elements of a drag show that are not permitted in public, the performance cannot be banned before it occurs. That would be a prior restraint — that is, censorship before expression occurs — of drag performances, a violation of the First Amendment.

What about drag and kids? Can the government restrict kids from attending drag performances?

Without more, drag is not “obscene as to minors.” That standard may differ somewhat state to state, but it generally uses the Miller test as customized for minors. That means it reaches sexually explicit material that is not obscene for adults, but which may be barred to minors (absent parental consent) based on:

• Whether the average individual, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient (i.e., morbid or shameful) interest in sex for minors; 
• Whether a reasonable person would find that the material, taken as a whole, lacks serious literary, artistic, educational, political, or scientific value for minors; and 
• Whether the material depicts actual or simulated conduct in a way that is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable for minors.

Laws banning children from drag shows often ban children — from toddlers to 17 year olds — from attending any drag performances, which as stated above, would ban even the oldest minors from attending a traditional Shakespearean play, many sketch comedy shows, or a screening of the 1993 Robin Williams comedy, “Mrs. Doubtfire.” This vague and overbroad restriction would violate the rights of the performer, the parent, and the child.

What is drag queen story hour? Isn’t it illegal? 

“Drag queen story hour” is when drag performers — oftentimes dressed in ostentatious clothing — read books in libraries, book stores, or other locations. Some states have attempted to ban drag queen story hour, but it is protected by the First Amendment.

I don’t dress in drag. Why should I care about any of this?

Banning drag is not just an infringement on drag performers’ rights. It infringes the right of all individuals to watch drag shows and to express themselves and threatens performances like “La Cage aux Folles,” “Miss Saigon,” “RuPaul's Drag Race,” and “Yentl,” to name but a few. 

Banning expressive conduct with which you disagree or that you don’t want to see makes room for the government to infringe your First Amendment rights.

This is a democracy. If people wanted drag, they’d vote for politicians who supported drag. Why can’t democratically elected officials ban something that many may dislike? 

Democratically elected government officials cannot violate individuals’ First Amendment rights — full stop. Allowing officials to ban ideas you dislike leaves room for them to also ban ideas that you do like — including the right to protest drag shows and to attend other types of performances that you enjoy but that others may find objectionable.