Noah Feldman, Columnist

Tennessee’s Ban on Drag Performance Violates Freedom of Speech

Singing, dancing and dressing are modes of self-expression and protected by the First Amendment.

March 16, 2023 at 11:00 AM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Dame Edna’s not allowed in Tennessee.
Photographer: Lisa Maree Williams/Getty Images

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Tennessee has passed a law aimed at restricting drag performances, an art form that often involves exaggerated gender performance and cross-dressing. Similar bills have been introduced in 14 other states as part of the revived culture war against LGBTQ people. The Tennessee law was written to survive judicial scrutiny by presenting itself as designed to protect minors. But the law is nevertheless unconstitutional, violating the First Amendment in several ways.

The most important First Amendment violation is also the most obvious: The Tennessee law discriminates based on viewpoint. Viewpoint determination violates the core of free speech as understood by the Supreme Court.