Arkansans all over the state are making noise about Senate Bill 43, which would at its narrowist classify drag performances as an “adult-orientated business.” In Fayetteville, a group from the University of Arkansas School of Law chimed in. The bill passed through the Senate Tuesday afternoon.

William Yandell, president of OutLaw, the law school’s LGBTQ organization, shared thoughts on how the bill would limit performers First Amendment rights. Yandell notes “the attempt to equate drag to sexually explicit adult entertainment is absurd and betrays either willful ignorance of the art form or intentional distortion.”

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The bill passed unanimously in Arkansas Senate’s City, County & Local Affairs Committee the morning of Jan. 19, which was followed by a rally of those in defiance of the bill on the Capitol steps the same afternoon.

With broad language that makes it hard to fathom the bill’s actual impact, Yandell also notes that the legislation would lead to “discriminatory outcomes; judgment calls are left in the hands of human beings with human biases.”

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Here’s Yandell’s thoughts in full:

On January 19, 2023, the Senate committee of the Arkansas State Legislature unanimously passed Senate Bill 43 (SB 43), which, if approved by the legislature, could prohibit all drag events in public spaces, even at pride events. SB 43 would also classify any venue that hosts a “drag performance” as an adult-oriented business. In so doing, the bill attempts to limit the First Amendment rights of drag performers to express their art form and of the public to view and participate in drag events as patrons. Critically, the bill singles out an art form that has been quintessential to the LGBTQ community as both a form of entertainment and an organizing political force for decades, if not centuries. We honor the legacy of our predecessors in the struggle for acceptance by once again rebuking the attempt to force our community out of public life. 

 

The author of the bill, Senator Gary Stubblefield, defines “drag performance” as at least one performer exhibiting a “gender identity that is different from the performer’s gender assigned at birth,” that is held before an audience of at least two people for entertainment, and must appeal to “the prurient interest,” or, as otherwise defined, activity that tends to incite lust in the viewer.

 

This language and the attempt to equate drag to sexually explicit adult entertainment is absurd and betrays either willful ignorance of the art form or intentional distortion. Drag, like all expressive forms, has sub-genres, niches, and varying levels of appropriateness for different audiences. Drag often takes the form of overt political speech, and, because drag has historically been marginalized by lawmakers, is arguably always political speech. Political speech, as this legislature ought to know, is entitled to the highest level of First Amendment protection. 

 

Further, drag cannot be properly described as appealing to the prurient interest or any other variation of obscenity as is understood under the law. Patrons of drag shows are not watching to satisfy a sexual urge, but for entertainment. This fact is obvious. For decades, major television networks have aired drag performances that could easily satisfy SB 43’s language under a TV-14 rating. Like banning all music because some music is not appropriate for children, SB 43, if passed, would be similarly overbroad and misguided. 

 

In response to criticism, Senator Stubblefield claimed that the bill as written would only target truly inappropriate performances. Yet, like similar bills around the country, SB 43 is untenably vague. Vagueness is a problem in the law precisely because it leads to discriminatory outcomes; judgment calls are left in the hands of human beings with human biases. How many lawfully operating gay bars will be harassed as a result of this bill? How many supportive venues will eliminate drag programming out of fear of being the subject of SB 43’s enforcement? Harassment, stifling expression, and inspiring fear of retaliation, we submit, are the true purposes of SB 43. 

 

Make no mistake. The First Amendment rights that are under attack in the form of SB 43 are not applicable only to drag performers or the LGBTQ community, but to all Arkansans. If the legislature can define an entire expressive form as unfit for public consumption, what else may be prohibited in the name of “protecting the children?” To whom do we designate the great task of acting as the authority for what political speech is fit for the public to hear, or how parents may raise their children? OutLaw answers by saying that no such authority does or can exist so long as the Constitution reigns supreme over the likes of the State Senate committee. 

 

This statement was endorsed by the following University of Arkansas Law Student Organizations: Student Bar Association, Board of Advocates, Women’s Law Society, Young Democrats, Find the Balance, Environmental Law Society, and the Sports and Entertainment Legal Society.

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