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Why Tennessee's Law Limiting Drag Performances Likely Violates The First Amendment

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Protesters against a bill restricting drag shows march from a rally outside of the Tennessee Capitol in Nashville on Feb. 14, 2023. AP Photo/Jonathan Mattise

On March 2, 2023, Tennessee became the first state to enact a law restricting drag performances.

This law is part of a larger push by Republican lawmakers in numerous states to restrict or eliminate events like drag shows and drag story hours.

These legislative efforts have been accompanied by inflammatory rhetoric – not grounded in fact – about the need to protect children from “grooming” and sexually explicit performances.

Tennessee Republican Sen. Lindsey Tichenor, the legislation’s lead sponsor, claimed, “This bill is pro-children. For some reason, people want this type of content in front of children. And I would dare ask, why? Why do we need to sexualize our children?”

Such rhetoric reveals that those seeking to restrict drag performances sometimes don’t understand what drag is or seeks to do.

Drag is an art form in which performers play with gender norms. Drag shows often include dancing, singing, lip-synching or comedy. Some common forms of drag include cisgender male and transgender female performers dressed in stereotypically feminine ways and cigender female and transgender male performers dressed in stereotypically masculine ways.

Drag artists also participate in many other kinds of events. For example, drag queens host family-friendly story hours at local libraries where they read age-appropriate books to children.

Current Supreme Court decisions suggest that laws like the one just passed in Tennessee probably violate the First Amendment’s protection of free speech. This is, in part, because many drag performances are protected by the First Amendment, which safeguards not only spoken, written, and signed speech but also many other actions meant to convey messages.

Republican legislators appear to have written the law to try to avoid running afoul of the First Amendment by treating drag shows as if they meet the legal definition of obscenity. Speech, including expressive conduct, that meets the Supreme Court’s criteria for obscenity is not covered by First Amendment protection.

I’m a scholar who studies U.S. free speech law. Looking at the text of Tennessee’s new law, I see several ways in which this anti-drag law appears susceptible to significant First Amendment challenges.

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Tennessee Gov. Bill Lee signed the drag show restrictions into law.
AP Photo/Mark Zaleski

Tennessee’s new law

The law amends what Tennessee considers an “adult cabaret performance” and bans “male or female impersonators who provide entertainment that appeals to a prurient interest” from performing on public property or in any other location where the performance “could be viewed by a person who is not an adult.”

This law thus regulates not only public spaces but also privately owned locations like bars and performance venues. A first violation is a misdemeanor. Subsequent violations are felonies.

Because the law is limited to drag performances that appeal “to a prurient interest,” in theory, many drag shows should be unaffected. A prurient interest consists of a morbid or excessive interest in sex, nudity or excretion.

But various Republican legislators in Tennessee have recently fought to prevent even vetted family-friendly drag shows with no lewd or sexual content from being held in public.

Given this, drag performers and other artists have reasonable grounds for suspecting that Tennessee officials may seek to interpret the new law broadly to include many kinds of drag performances and other shows that play with gender norms.

Given the popularity of drag shows, this new law could stifle a lot of expression and damage the ability of full-time drag performers to make their living.

But even if Tennessee officials interpret the new law narrowly, the law still appears likely to run afoul of the First Amendment.

Drag is protected ‘expressive conduct’

The First Amendment protects more than just written, oral or signed speech. It also protects many other actions designed to convey ideas. The legal terms for these actions are “expressive conduct” or “symbolic speech.”

Some activities courts have recognized as expressive conduct include making and displaying art and music, picketing, marching in parades, desecrating a U.S. flag, burning a draft card, dancing and other forms of live entertainment.

Drag shows typically consist of various forms of protected speech – such as telling jokes and introducing performers – and protected expressive conduct such as lip-synching and dancing. Thus, drag shows are usually covered by the First Amendment.

But Tennessee’s new law insinuates that drag performances might be part of a category of speech exempt from the First Amendment protection: legally defined obscenity. If this were so, then Tennessee’s law likely would pass constitutional muster.

However, Tennessee lawmakers have not provided viable examples of obscene drag performances in Tennessee. And current Supreme Court precedent makes it highly unlikely that all the expressive conduct Tennessee seeks to regulate falls into the narrow legal category of obscenity.

Defining obscenity

In considering whether something is legally obscene, the Supreme Court requires courts to consider whether (1) the average person, applying relevant community standards, would find that the work, taken as a whole, appeals to prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct defined by the applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Tennessee’s inclusion of the phrase “appeals to a prurient interest” suggests they are trying to classify the behavior they are seeking to regulate as obscene.

But the Supreme Court’s criteria for obscenity outline something stronger and more specific than the Tennessee law does.

First, it requires that the work “taken as a whole” appeals to the prurient interest of “the average person.” The vast majority of drag shows don’t satisfy this criterion. It is not enough for some people to find some portions of drag shows appealing to a prurient interest.

In addition, Tennessee’s law completely ignores the other two criteria for obscenity. Many drag shows don’t involve any sexual conduct. But typically when drag shows do invoke sexual conduct it’s campy or humorous, rather than what the law defines as “patently offensive.”

Perhaps most significantly, as is widely recognized, drag is artistic and political. Drag performers use drag to push artistic boundaries and to discuss pressing political issues.

Courts and scholars alike have widely held that free speech is a crucial aspect of democratic self-governance. For that reason, free speech’s role in preserving democracy is one of the most cited rationales for protecting it.

As a First Amendment scholar, I believe that rationale includes protecting drag shows.

Discriminatory and overly broad

Freedom of speech, like all rights, is not absolute.

The Supreme Court has allowed states to put some limits on protected speech. For example, states may impose restrictions on the time, place and manner in which speech occurs, so long as such limitations are content-neutral.

Examples include requiring permits to hold parades on city streets and not allowing loud music between midnight and 6 a.m. on public sidewalks.

Tennessee’s law has at least two problems here.

First, it legislates more than mere time, place and manner restrictions. Instead, the law bars, at all times, “male or female impersonation” that it deems appealing to a prurient interest from any public property and from many private venues, too. This is a wholesale ban on such speech in all public forums and in many private spaces. Courts will likely find this too broad.

Second, by singling out “male and female impersonators,” Tennessee’s law fails to be content-neutral. It instead discriminates on the basis of the expressive conduct’s content.

Tennessee’s new law bolsters the case that anti-drag laws are antidemocratic, discriminatory and unconstitutional.

The Conversation

Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Public Radio Can Help Solve The Local News Crisis — But That Would Require Expanding Staff And Coverage

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Can public radio fill the hole left by the decline of local news outlets? Talaj/iStock / Getty Images Plus

Since 2005, more than 2,500 local newspapers, most of them weeklies, have closed, with more closures on the way.

Responses to the decline have ranged from luring billionaires to buy local dailies to encouraging digital startups. But the number of interested billionaires is limited, and many digital startups have struggled to generate the revenue and audience needed to survive.

The local news crisis is more than a problem of shuttered newsrooms and laid-off journalists. It’s also a democracy crisis. Communities that have lost their newspaper have seen a decline in voting rates, the sense of solidarity among community members, awareness of local affairs and government responsiveness.

Largely overlooked in the effort to save local news are the nation’s local public radio stations.

Among the reasons for that oversight is that radio operates in a crowded space. Unlike a local daily newspaper, which largely has the print market to itself, local public radio stations face competition from other stations. The widely held perception that public radio caters to the interests of people with higher income and education may also have kept it largely out of the conversation.

But as a scholar who studies media, I believe that local public radio should be part of the conversation about saving local news.

A newspaper called
Since 2005, more than 2,500 local newspapers have closed.
Don Farrell/Digital Vision/Getty Images

Advantages are trust, low cost and reach

There are reasons to believe that public radio can help fill the local news gap.

Trust in public broadcasting ranks above that of other major U.S. news outlets. Moreover, public radio production costs are relatively low – not as low as that of a digital startup, but far less than that of a newspaper or television station. And local public radio stations operate in every state and reach 98% of American homes, including those in news deserts – places that today no longer have a daily paper.

Finally, local public radio is no longer just radio. It has expanded into digital production and has the potential to expand further.

To assess local public radio’s potential for helping to fill the local information gap, I conducted an in-depth survey of National Public Radio’s 253 member stations.

The central finding of that study: Local public radio has a staffing problem. Stations have considerable potential but aren’t yet in a position to make it happen.

That’s not for lack of interest. Over 90% of the stations I surveyed said they want to play a larger role in meeting their community’s information needs. As one of our respondents said, “The need for the kind of journalism public media can provide grows more evident every day. The desire on the part of our newsrooms is strong.”

To take on a larger role, most stations would need to expand their undersized news staff.

Sixty percent of the local stations have 10 or fewer people on their news staff, and that’s by a generous definition of what constitutes staff. Respondents included in this count broadcast and digital reporters, editors, hosts, producers and others who contribute to local news and public affairs content in its various forms, as well as those who directly provide technical or other support to those staff members. In addition to full-time employees, stations were asked to include part-time employees and any students, interns or freelancers who contribute regularly.

The staffing problem is most acute in communities that have lost their newspaper or where local news gathering has been sharply cut back. Many of these communities were judged by the respondents to have a below-average income level, which limits the local station’s fundraising potential.

Although the staffing problem is more pronounced at stations in communities where local news is in short supply, staff size at nearly every station falls far short of even a moderate-sized daily newspaper.

The Des Moines Register, for example, has a daily circulation of 35,000 copies and a nearly 50-person newsroom – a staff larger than 95% of local public radio stations.

Limitations on potential

One consequence of the staffing problem is that local public radio is actually not all that “local.”

The survey found that in the 13-hour period from 6 a.m. to 7 p.m. on weekdays, only about two hours of locally produced news programming was carried on the average station, some of it in the form of talk shows and some of it as repeat programming. For stations with a news staff of 10 or fewer people, the daily average of locally produced news – even when including repeat programming – is barely more than one hour.

This is only one indicator of the limitations of an undersized newsroom.

Stations with a news staff of 10 or fewer people, for example, were only half as likely as those with more than 20 to have a reporter routinely assigned to cover local government. Some stations are so short of staff that they do not do any original reporting, relying entirely on other outlets, such as the local newspaper, for the stories they air.

A small news staff also means it’s hard to create content for the web, as illustrated by stations’ websites. The stations with 10 or fewer people in their newsroom were only half as likely as those with a staff size of more than 10 to feature local news on their homepage. A local station’s website cannot become the “go-to” place for residents seeking local news on demand if the station fails to provide it.

Lawn signs in different colors advertising local candidates.
Who covers local political races if a town’s newspaper has gone under?
AP Photo/Ryan J. Foley

The stakes for democracy

With more staff, local public radio stations could help fill the information gap created by the decline of local newspapers. They could afford to assign a reporter full time to cover local government bodies like city councils and school boards.

It would still be a challenge for stations in rural areas that include multiple communities, but that challenge is also one that newspapers in rural areas have always faced and have in the past found ways to manage.

With adequate staff, local stations could also make their programming truly “local,” which would broaden their audience appeal.

Programming created by NPR, PRX and other content providers accounts for much of the appeal of local stations. But it can be a handicap in areas where many potential listeners have values and interests that aren’t met by national programming and where the station offers little in the way of local coverage. As one respondent noted, stations must provide coverage “that reflects the entirety of their communities.”

How much new money would local stations require to expand their coverage? Based on our respondents’ estimates and a targeting of the funding for the communities most in need, roughly $150 million annually would be required.

Given that these communities tend also to be the ones in below-average income areas, the funding would have to come largely from outside sources. That won’t be easy, but it needs to get done. As the Knight Foundation’s Eric Newton noted, local news gives people the information they “need to run their communities and their lives.”

This story has been corrected to state the name of one of two content providers to public radio stations, PRX.

The Conversation

Thomas E. Patterson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Should The US Ban TikTok? Can It? A Cybersecurity Expert Explains The Risks The App Poses And The Challenges To Blocking It

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Is a wildly popular social media app a threat to the U.S.? AP Photo/Michael Dwyer

TikTok CEO Shou Zi Chew testified before the House Energy and Commerce Committee on March 23, 2023, amid a chorus of calls from members of Congress for the federal government to ban the Chinese-owned video social media app and reports that the Biden administration is pushing for the company’s sale.

The federal government, along with many state and foreign governments and some companies, has banned TikTok on work-provided phones. This type of ban can be effective for protecting data related to government work.

But a full ban of the app is another matter, which raises a number of questions: What data privacy risk does TikTok pose? What could the Chinese government do with data collected by the app? Is its content recommendation algorithm dangerous? And is it even possible to ban an app?

Governments around the world have been banning TikTok on government-issued phones.

Vacuuming up data

As a cybersecurity researcher, I’ve noted that every few years a new mobile app that becomes popular raises issues of security, privacy and data access.

Apps collect data for several reasons. Sometimes the data is used to improve the app for users. However, most apps collect data that the companies use in part to fund their operations. This revenue typically comes from targeting users with ads based on the data they collect. The questions this use of data raises are: Does the app need all this data? What does it do with the data? And how does it protect the data from others?

So what makes TikTok different from the likes of Pokemon-GO, Facebook or even your phone itself? TikTok’s privacy policy, which few people read, is a good place to start. Overall, the company is not particularly transparent about its practices. The document is too long to list here all the data it collects, which should be a warning.

There are a few items of interest in TikTok’s privacy policy besides the information you give them when you create an account – name, age, username, password, language, email, phone number, social media account information and profile image – that are concerning. This information includes location data, data from your clipboard, contact information, website tracking, plus all data you post and messages you send through the app. The company claims that current versions of the app do not collect GPS information from U.S. users. There has been speculation that TikTok is collecting other information, but that is hard to prove.

If most apps collect data, why is the U.S. government worried about TikTok? First, they worry about the Chinese government accessing data from its 150 million users in the U.S. There is also a concern about the algorithms used by TikTok to show content.

Data in the Chinese government’s hands

If the data does end up in the hands of the Chinese government, the question is how could it use the data to its benefit. The government could share it with other companies in China to help them profit, which is no different than U.S. companies sharing marketing data. The Chinese government is known for playing the long game, and data is power, so if it is collecting data, it could take years to learn how it benefits China.

One potential threat is the Chinese government using the data to spy on people, particularly people who have access to valuable information. The Justice Department is investigating TikTok’s parent company, ByteDance, for using the app to monitor U.S. journalists. The Chinese government has an extensive history of hacking U.S. government agencies and corporations, and much of that hacking has been facilitated by social engineering – the practice of using data about people to trick them into revealing more information.

The second issue that the U.S. government has raised is algorithm bias or algorithm manipulation. TikTok and most social media apps have algorithms designed to learn a user’s interests and then try to adjust the content so the user will continue to use the app. TikTok has not shared its algorithm, so it’s not clear how the app chooses a user’s content.

The algorithm could be biased in a way that influences a population to believe certain things. There are numerous allegations that TiKTok’s algorithm is biased and can reinforce negative thoughts among younger users, and be used to affect public opinion. It could be that the algorithm’s manipulative behavior is unintentional, but there is concern that the Chinese government has been using or could use the algorithm to influence people.

TikTok’s algorithm for serving you videos has also become a source of concern.

Can the government ban an app?

If the federal government comes to the conclusion that TikTok should be banned, is it even possible to ban it for all of its 150 million existing users? Any such ban would likely start with blocking the distribution of the app through Apple’s and Google’s app stores. This might keep many users off the platform, but there are other ways to download and install apps for people who are determined to use them.

A more drastic method would be to force Apple and Google to change their phones to prevent TikTok from running. While I’m not a lawyer, I think this effort would fail due to legal challenges, which include First Amendment concerns. The bottom line is that an absolute ban will be tough to enforce.

There are also questions about how effective a ban would be even if it were possible. By some estimates, the Chinese government has already collected personal information on at least 80% of the U.S. population via various means. So a ban might limit the damage going forward to some degree, but the Chinese government has already collected a significant amount of data. The Chinese government also has access – along with anyone else with money – to the large market for personal data, which fuels calls for stronger data privacy rules.

Are you at risk?

So as an average user, should you worry? Again, it is unclear what data ByteDance is collecting and if it can harm an individual. I believe the most significant risks are to people in power, whether it is political power or within a company. Their data and information could be used to gain access to other data or potentially compromise the organizations they are associated with.

The aspect of TikTok I find most concerning is the algorithm that decides what videos users see and how it can affect vulnerable groups, particularly young people. Independent of a ban, families should have conversions about TikTok and other social media platforms and how they can be detrimental to mental health. These conversations should focus on how to determine if the app is leading you down an unhealthy path.

This article has been updated to indicate that TikTok CEO Shou Zi Chew testified before Congress on March 23, 2023.

The Conversation

Doug Jacobson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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In Congress, Breaking Unwritten Rules That Encouraged Civility And Enabled Things To Get Done Is Becoming The New Normal

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Speaker Kevin McCarthy at a news conference on Capitol Hill. Kent Nishimura/Los Angeles Times via Getty Images

When House Speaker Kevin McCarthy ordered an investigation into the Manhattan district attorney’s ongoing criminal probe of former President Donald Trump, he broke with House practices and norms.

And the three committee chairmen McCarthy tasked with investigating may be stepping outside of federal jurisdiction by attempting to investigate a county prosecutor.

As a scholar of the legislative branch, I study how its practices and procedures have changed over time. This move is just one in a growing list of norm-breaking events that have colored how the House, during the 118th Congress, conducts business.

When McCarthy gave government-owned footage of the Jan. 6th insurrection to a single media outlet, he broke a long-standing congressional norm of releasing government information to media outlets broadly.

When multiple, unrepentent Republican representatives heckled Democratic President Joe Biden during his February 2023 State of the Union address, they broke behavioral norms for the occasion. The last person who heckled a sitting president during the State of the Union was Rep. Joe Wilson, of South Carolina, in 2009 when President Obama addressed a joint session of Congress. Wilson apologized.

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U.S. Rep. Marjorie Taylor Greene and other Republican members of Congress react during President Joe Biden’s 2023 State of the Union address.
Jim Watson/AFP via Getty Images

118th Congress broke norms from the start

Even before this session of Congress began in January 2023, Republicans members of the House broke a norm by forcing 15 ballots over four days before voting to make McCarthy speaker. The last Speaker vote that required multiple ballots was in 1923 when it took nine.

But when McCarthy denied seats on the House Intelligence Committee to Democratic Reps. Adam Schiff, who once chaired the committee, and Eric Swalwell, both of California, he went much further. Historically, both parties have tended to avoid politicizing national security. Removing members with the kind of institutional knowledge Schiff and Swalwell possess could have serious consequences for the effective operation of the committee.

The House also voted to remove Rep. Ilhan Omar, another Democrat, from the House’s Foreign Affairs Committee.

In the House, Republican and Democratic leadership are traditionally in control of which members they submit for committee assignments. Despite this norm, McCarthy refused to allow Schiff or Swalwell a seat on the Intelligence Committee after Minority Leader Hakeem Jeffries put their names forward.

Accusing Reps. Swalwell and Schiff of misusing the panel during the previous two Congresses, McCarthy said he was denying the two representatives seats on the committee for national security reasons. And he forced a floor vote to oust Omar for her antisemitic comments, even though she apologized.

Standing before a podium, a woman speaks as two men, with their hands clasped, watch.
U.S. Reps. Ilhan Omar (center), Eric Swalwell (left) and Adam Schiff speak at a press conference about congressional committee assignments.
Kevin Dietsch via Getty Images News

House Democrats maintain McCarthy’s move was political payback because the House, under former Speaker Nancy Pelosi, a Democrat, had voted to remove Republican Reps. Marjorie Taylor Greene and Paul Gosar from their committees over incendiary comments the two made. Some of their remarks included threats of violence against members of the House.

That was not the first time Pelosi denied the Republican minority leader his choice of committee appointments. During the 117th Congress, when she and House Democratic leadership were populating the Jan. 6 committee to investigate the Capitol insurrection, McCarthy wanted to seat two known Trump loyalists: Reps. Jim Banks of Indiana and Jim Jordan of Ohio. Pelosi rejected them.

When norms are ignored

Traditionally, if a member of Congress committed an offense that did not rise to the level of an ethics investigation, their leadership would decide how to punish them. That was the case in 2019, when then-Minority Leader McCarthy stripped now former Iowa Rep. Steven King of his committee assignments, citing King’s racist comments.

But McCarthy did not punish Greene – Pelosi did.

At the time, Republicans warned Pelosi she was setting a precedent – or new norm – of the majority party in the House determining committee assignments for the minority party.

“If this is the new standard, I look forward to continuing out the standard,” McCarthy said.

The norms of governance in the House provide stability and clarity regarding what type of behavior is and is not allowed among members. But when those norms are broken, a series of devolving consequences can follow.

Partisan fights pay

Republican members of Congress attacking Democrats and Democratic members of Congress attacking Republicans has long been a way for elected officials to grab voters’ attention. But the divisive rhetoric and deeply partisan behavior of officeholders over the past few decades has only pushed the two parties farther apart, particularly during the 2000s.

During that period, it became clear that politicians who whipped up their bases by using the politics of outrage could score political points and replenish their political coffers at the same time. That realization has changed the political calculus.

Today, donors reward shocking behavior. Sen. Josh Hawley, of Missouri, for example, raised US$3 million after he voted to block the presidential election results on Jan. 6, 2021.

Greene raised $3.2 million after only three months in office when news broke that she embraced conspiracy theories and previously threatened violence against Democratic politicians. Perhaps seeking similar results, when McCarthy kicked Schiff off the House Intelligence Committee, Schiff went on TikTok to announce his candidacy for the Senate.

Whether this extreme behavior by elected officials is motivated by political one-upmanship or money, or both, Americans are watching, and many don’t approve of the behavior. A February Gallup Poll has approval of Congress hovering around 18%.

The Conversation

Sarah Burns receives funding from the Institute for Humane Studies and she is a non-resident fellow at The Quincy Institute.

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