No Such Thing as a ‘Family-Friendly’ Drag Show: A Legal Analysis on Why the First Amendment Does Not Protect Obscenity
By Daniel Schmid
Imagine this happening in public in your town: grown men dressed like strippers, gyrating their bared hips and stopping mid-dance to let the audience — including children — stuff dollar bills in their thongs. If this sexually explicit display sounds obscene, that’s because it is.
Yet in southwest Florida, Naples Pride, an LGBTQ group, insisted that this type of perverse demonstration be held outside near a children’s playground this June. And had the City of Naples not stepped in, children would have been subjected to this obscenity under the guise of being “family friendly.” Despite being marketed as an all-ages event, make no mistake — there is no such thing as a “family-friendly” drag show.
At the eleventh hour, the 11th Circuit Court of Appeals sided with decency and ruled against Naples Pride, granting the City of Naples' motion to stay. This ruling limited the obscene event to only adults and moved it indoors and away from innocent children.
While Naples Pride claimed its show was about “free speech,” it was really about obscenity, plain and simple. And obscenity isn’t protected by the First Amendment. Here’s a look into why there is no constitutional (or moral) justification for obscene public events to be held during so-called “Pride” Month nationwide.
Obscenity ‘Unprotected’ by the Constitution
For over 50 years, the Supreme Court has recognized that it is “categorically settled” that “obscene material is unprotected by the First Amendment” (Miller v. California; emphasis added). This long line of understanding traces its roots all the way back to common law where “[a]cts of gross and open indecency or obscenity, injurious to public morals” was a criminal offense (Winters v. New York).
The government, including the City of Naples, possesses “the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Mr. Chief Justice Warren’s words, the States’ ‘right to maintain a decent society,’” (Paris Adult Theatre I v. Slaton). And this is certainly true where obscenity is targeted at minors.
Obscene and sexualized dancing in the public square does not qualify as protected speech.
In Barnes v. Glen Theatre, Inc., “People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of ‘expressive conduct’ in O'Brien.”
In other words, “expressive conduct” such as grown men role-playing as Stripper Barbie in the park is no more protected by the First Amendment than the nudist flaunting around in public.
The Supreme Court long ago held that obscene performances “on a public street do not become automatically protected by the Constitution” because of the forum chosen “any more than a ‘live’ performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue” (Paris Adult Theatre I v. Slaton).
We needn’t accept unregulated access to deviant behavior targeted at children merely because one seeks to do it in a public park and calls it “expression.” That is beside the point.
No Such Thing as a ‘Family-Friendly’ Drag Show
The City of Naples had an unquestionable and constitutional interest in protecting its minor citizens from filth. “Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance” (Miller v. California).
While a precise definition of “obscenity” has historically been somewhat elusive, with Justice Potter Stewart famously opining: “I know it when I see it” (Jacobellis v. Ohio), Merriam-Webster defines obscenity as “designed to incite to lust or depravity” and in “disregard of moral or ethical principles.”
Grown men dressed like women in lingerie and tight-fitting dress who are thrusting their hips at children to get greenback gratuities plainly meets these definitions.
The City of Naples has seen it and knows that it is obscene. Because it is.
No one would compare the elegant performance of a Juilliard-trained ballet dancer with that of a stripper, but the First Amendment has been held to protect them both, despite the fact that the latter is not “high art, to say the least” (Barnes v. Glen Theatre, White, J., dissenting). Regardless of what one thinks of the protection afforded to stripping (or to those who engage in the activity), no one has ever questioned the government’s ability to require that it take place indoors and away from children.
The same is true of so-called “family-friendly” drag shows. These grown men with ill intentions may be perfectly friendly to a passerby, but not to families. The fact Naples Pride considers these lewd performances to be “family friendly” doesn’t make them so.
Indeed, as Mark Twain noted, “It ain’t so much the things that people don’t know that makes trouble in this world, as it is the things that people know that ain’t so.”
Calling a drag show “family friendly” is as fanciful as its perverted participants. Simply put, it is a lie, and we know that by seeing it.
A drag show is obscene, and the City of Naples absolutely had the right to prohibit this constitutionally unprotected obscenity from taking place in a public park in front of children. Thankfully, Naples succeeded in protecting children from this perversion, and other governments (and parents) should be emboldened to do the same.
For more from Daniel Schmid, Associate Vice President of Legal Affairs, click HERE.