Opinion With an ode to the First Amendment, a judge rebuffs the war on woke
"Republicans, right-wing judges and MAGA activists have set out to trample on free speech and individual rights in the name of battling “wokeism.” If they don’t like what teachers say about history, gag them. If they don’t like certain books, ban them. If they don’t like a corporation defending LGBTQ rights, retaliate against it. Their crusade has become an expression of not only white Christian nationalism but of contempt for the Constitution and the First Amendment.
But last week, U.S. District Judge Thomas L. Parker, appointed by President Donald Trump, stood up to the thought police and the MAGA bullies in striking down the so-called drag queen ban (the Adult Entertainment Act) in Tennessee.
Parker began with an ode to the First Amendment: “Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.” He continued, “That freedom is of first importance to many Americans such that the United States Supreme Court has relaxed procedural requirements for citizens to vindicate their right to freedom of speech, while making it harder for the government to regulate it.” And the Tennessee statute impermissibly tried to regulate free speech, he found.
Parker ruled that the law was “both unconstitutionally vague and substantially overbroad” because of the prohibition on displays “harmful to minors,” whatever that means. The law “fails to provide fair notice of what is prohibited, and it encourages discriminatory enforcement,” especially because the ban applies wherever a minor could be present.
Parker noted that the Supreme Court does not protect obscenity but certainly does protect speech that is unpopular. “Simply put, no majority of the Supreme Court has held that sexually explicit — but not obscene — speech receives less protection than political, artistic, or scientific speech. … The AEA’s regulation of ‘adult-oriented performances that are harmful to minors under § 39-17-901′ does target protected speech, despite Defendant claims to the contrary.” In a retort to Republicans seeking to rid libraries, classrooms and performance venues of anything they find offensive, Parker wrote, “Whether some of us may like it or not, the Supreme Court has interpreted the First [Amendment] as protecting speech that is indecent but not obscene.”
And Parker also found the law “targets the viewpoint of gender identity — particularly those who wish to impersonate a gender that is different from the one with which they are born.” This is prohibited “content-based, viewpoint-based regulation on speech.” Republicans insist there is no such thing as gender identity other than gender determined at birth. That’s not a fact, as the MAGA censors insist; that’s a viewpoint. And it is impermissible to ban other viewpoints. That, Parker underscores, is what a free society is all about.
Simply because MAGA politicians want to write trans Americans out of existence does not make it constitutionally permissible. “The Court finds that the AEA’s text discriminates against a certain viewpoint, imposes criminal sanctions, and spans a virtually unlimited geographical area,” Parker wrote. “The AEA can criminalize — or at a minimum chill — the expressive conduct of those who wish to impersonate a gender that is different from the one with which they were born in Shelby County. Such speech is protected by the First Amendment.” He concluded, “This statute — which is barely two pages long — reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. The virulence of the AEA’s overbreadth chills a large amount of speech, and calls for this strong medicine.”
Frankly, this isn’t a close case. The Tennessee statute, like so many unconstitutional abominations, patently violates First Amendment rights. Governors and lawmakers — who took an oath to uphold the Constitution — should know better, but either their constitutional literacy has atrophied or they simply don’t care to abide by the Constitution. In wreaking havoc on a core democratic principle, they violate their oaths of office. No governor or lawmaker faithful to the Constitution should have anything to do with such legislation.
Anti-woke Republicans trafficking in authoritarian abridgment of speech would do well to read the opinion from a judge who cannot be written off as a progressive crank. Parker’s sound constitutional reasoning, defense of the First Amendment and determination to set aside any partisan loyalties should be a reassuring sign that, at least below the Supreme Court, the federal judiciary’s fidelity to the Constitution — not to MAGA patrons — remains intact."