Federal court rules that drag shows are protected by the First Amendment

[afleitch]

Kind of an issue of conflicr betwen decency and free speech I suppose.
Like is yelling swear words constantly in front of an elementary school really okay? Same idea except more perveted and sinister.

A lot of anti-LGBT protesters have been doing that for months. And outside Drag Queen Story events at libraries and schools.

[Donerail]

As far as I'm concerned, when a state or local law is challenged in federal courts, the burden is not on the state or local governments to justify their laws, the burden is on the challenger to establish that their behavior is a constitutionally protected right -- and I don't believe in any principle that "victimless" behavior is a protected right.

(Post will be deleted later today.)

This is a fascinating mindset, that the state has unilateral power to pass laws and it’s not on them to prove it is constitutional or warranted is certainly a position you can take

That has been the case for state laws with respect to the U.S. Constitution since the beginning and is made explicit in the 10th amendment. ( Federal laws under the U.S. Constitution, and state laws under their own constitutions, are a different matter. )

Unless that state law, like the one in this thread, seeks to regulate protected speech, in which case the burden is on the government and not the challenger to justify the law.

Wouldn't the challenger have to make the case that what is being regulated is protected speech?

You'd generally need to make out a prima facie case, sure. But there's no serious question as to whether a drag show is expressive in some way; non-obscene live entertainment will always be subject to the same standards as other forms of speech.

[John Dule]

As far as I'm concerned, when a state or local law is challenged in federal courts, the burden is not on the state or local governments to justify their laws, the burden is on the challenger to establish that their behavior is a constitutionally protected right -- and I don't believe in any principle that "victimless" behavior is a protected right.

(Post will be deleted later today.)

This is a fascinating mindset, that the state has unilateral power to pass laws and it’s not on them to prove it is constitutional or warranted is certainly a position you can take

That has been the case for state laws with respect to the U.S. Constitution since the beginning and is made explicit in the 10th amendment. ( Federal laws under the U.S. Constitution, and state laws under their own constitutions, are a different matter. )

Unless that state law, like the one in this thread, seeks to regulate protected speech, in which case the burden is on the government and not the challenger to justify the law.

Wouldn't the challenger have to make the case that what is being regulated is protected speech?

You'd generally need to make out a prima facie case, sure. But there's no serious question as to whether a drag show is expressive in some way; non-obscene live entertainment will always be subject to the same standards as other forms of speech.

What are your thoughts on the 303 Creative case in Colorado, then? The whole argument around that woman's case is that her "business" is "expressive" and therefore protected by the First Amendment. The logic cuts both ways.

[Donerail]

Unless that state law, like the one in this thread, seeks to regulate protected speech, in which case the burden is on the government and not the challenger to justify the law.

Wouldn't the challenger have to make the case that what is being regulated is protected speech?

You'd generally need to make out a prima facie case, sure. But there's no serious question as to whether a drag show is expressive in some way; non-obscene live entertainment will always be subject to the same standards as other forms of speech.

What are your thoughts on the 303 Creative case in Colorado, then? The whole argument around that woman's case is that her "business" is "expressive" and therefore protected by the First Amendment. The logic cuts both ways.

Yeah, I don't have a problem with public accommodations laws in general but Colorado probably erred in trying to extend theirs to cover expressive services. Characterizing individual artists as each exercising a "monopoly" over a class of their own services I think illustrates how stretched the logic goes.

[MarkD]

This is one of the things I find to be so lovable about liberals: Freedom of Speech can mean anything WE (liberals) want it to mean, including the "protection" of behaviors that do not victimize anyone else (physically) and which exhibit an "expressive" purpose (wearing a black arm band to school (Tinker v. Des Moines); burning a flag, burning a cross, burning an effigy; staging a drag show).
BUT,
when the SCOTUS strikes down campaign expenditure regulations (Buckley v. Valeo (1976), Federal Election Comm'n v. National Conservative PAC (1985), Citizens United v. Federal Election Comm'n (2010)), then suddenly liberals are aghast and appalled. "How could they do such a thing?!? Money ain't speech! This is just conservative judicial activism! Money is not the same thing as speech!!!"