All You Do Is Lose: Utah Anti-Drag Moratorium Struck Down As Unconstitutional

Free Speech

from the running-on-the-shitheel-platform dept

Terrible people who represent terrible people are making terrible laws. Catering to the base is never a good idea because all it does is elevate the lowest common denominator.

Utah isn’t an outlier. It has competition from several other state governments that aren’t necessarily as subordinate to the unofficial state religion. The separation of church and state prevents governments from officially picking a winner from the ecclesiastical front runners. But it rarely prevents them from engaging in legislation that caters to the winners of this unofficial theocratic lottery.

Utah wants to be Florida. Or Texas. Or Idaho. Or any number of states that have passed performative legislation targeting everything from perceived anti-conservative social media bias to TikTok, the insanely popular platform dipshit legislators have decided is the best thing to waste tax dollars legislating against. Utah has also taken a First Amendment-violating stance against porn.

Like others mired in this internally incoherent perception of “conservative” government, the Utah legislature has decided bigger government is better government when it comes to silencing anyone or anything that might possibly offend its most easily offended constituents.

The current performative legislative soup du jour is “drag.” Legislators pretend there’s some sort of latent threat to children that necessitates punishing people who refuse to conform to binary sexual constructs. If it isn’t unisex bathrooms, it’s the omnipresent threat to outdated societal mores that apparently demands the erection and establishment of unconstitutional laws.

Tennessee recently tried to ban drag shows, hiding its true intent behind pointed modifications to its adult entertainment regulations. Utah is trying the same thing. One of its cities tried to get out ahead of the drag ban curve by digging deep into its reserves of unenforced statutes. The modifications its legislature introduced made it pretty clear it was only meant to prevent one specific form of creative expression.

City legislators in St. George, Utah, apparently decided catering to bigots was all the justification they needed to start oppressing the people these bigots hated. Fortunately, the city doesn’t have the final say on the matter. Its anti-drag law was recently challenged by those subject to it.

This challenge has succeeded. All it took was a federal court taking a look at the law, as well as its intended outcomes, to come to the conclusion [PDF] that the law is unlawful.

It’s a 60-page decision that thoroughly dismantles the anti-drag law. But it’s easy to tell where this ends up by reading the opening paragraph of the ruling.

Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

[…]

Municipal governing bodies such as county commissions and city councils have a political role in which they can respond to public interest and requirements, but they also have a governing role in which they are responsible to protect the constitutional rights of all people who are in their jurisdiction. In that governing role they must be vigilant for all, not just those who support them. Those with whom they disagree with and those with whom they share little in common are also entitled to governmental rights and protection.

In other words, you can’t legislate against people you don’t like just because you don’t like them. In fact, it’s the groups the government collectively hates that deserve the most protection from the government. People the government likes never face reprisal. For everyone else, there’s the Constitution.

The court notes that it may be true that many, if not most, Utah residents would prefer to curtail this form of expression. But while that may encourage legislators to change the rules of public expression to cater to their constituents, these legislators must not forget they’re still expected to abide by the Constitution, even if that means disappointing those who are the loudest and angriest about their inability to coexist peaceably with people who aren’t like them.

Challenging times give us an opportunity to re-examine fundamental principles of our government and, once again, determine to adhere by them. We recognize that just as we enjoy and prize our rights, we must value and respect the rights of others. This case presents an opportunity for our recommitment.

The history of this case is telling. Here’s how it started:

Plaintiffs Southern Utah Drag Stars, LLC (“Drag Stars”) and Mitski Avalōx (“Avalōx”) seek their opportunity to speak in the public square through a community drag show which they say conveys messages of diversity, inclusion, and support for individuals with non-traditional gender expression and identities. Drag Stars applied for a special event permit (the “Permit”) to hold “Our Allies & Community Drag Show” (“Allies Drag Show”) at a public park in St. George, Utah (the “City”).

The City denied the Permit based on never-previously-enforced ordinances that prohibit special event advertising until a final event permit is issued. The record shows the use of this prohibition was a pretext for discrimination. The City also enacted a moratorium barring all new special event permit applications for six months. At the same time the City’s two-step blocked Drag Stars from holding the Allies Drag Show for at least six months, the City retroactively exempted the majority of other known violators of the advertising prohibition and exempted major swaths of events from the moratorium.

This move followed the city council’s ousting of the city manager for allowing HBO to hold and film a drag show in one of the city’s parks in 2022. The council told the city manager to block the permit. He refused. A council member then published an open letter criticizing the manager, which was then followed by the council demanding the manager be fired. Following his resignation, the former city manager threatened to sue St. George for wrongful termination. He secured a $625,000 settlement.

If there’s any satisfaction to be gained from these events, it’s that the city manager — who correctly labelled the council’s permit refusal as unconstitutional — has managed to make (as the court states it) St. George’s “politically strongly conservative” residents pay him $625,000 to not work for them anymore.

Not content to blow money on a city manager who actually managed to pass a civics class, the city generated even more permit stipulations with the sole intent of preventing people it didn’t like from utilizing public spaces. And it decided to prevent the plaintiffs from securing a permit despite the fact the plaintiffs complied with all of the new, extremely pointed restrictions.

The city actually agreed to grant a permit to the plaintiffs. But it looked for new ways to deny it after Lisa Dorn, a local clinical therapist, sent a text message to the same council member (Michelle Tanner) who forced the city manager’s resignation. All the message said was that Dorn “believed” drag shows had been outlawed in the state.

Dorn’s message stated (among other things) that the Southern Union Drag group were “all sexually abusing kids.” Seems pretty defamatory, but that’s not the issue at the center of this case.

One hour later, the council member sent an email to the city and the city attorney claiming she was receiving “more complaints” about “adult entertainment” being “performed in front of children.” As evidence, she offered the text message she had recently received from this supposed “mental health therapist.”

The city attorneys and council, guided by Lisa Dorn, started looking for any reason at all to deny this permit. This job was considered so important it was handed over to an unpaid intern from a local high school. The intern found several planned events violated the rules enacted to prevent the drag show from taking place. The city then offered exemptions to every other permit holder other than the drag show requesters. But it decided to enforce one stipulation against the drag show — one it had never enforced prior to his event.

The only advertisement the city based the denial on was the post on the vendor website prior to March 21, 2023, not the post on social media Drag Stars made March 30, 2023. Prior to the Permit denial, the City had never previously enforced the Advertising Prohibition.

There’s plenty more in the decision about the city’s extremely selective enforcement of its public permits statutes.

But here’s the payoff: this selective enforcement, along with the problematic stipulations themselves, violates the First Amendment.

There is no question that there are live issues in this case and granting the requested relief would have a real effect in the real world. This order directs the City to reverse their denial of Drag Stars’ special event permit and orders the City to issue a permit for Drag Stars event to be held on June 30, 2023. Drag Stars can now hold its event, an effect in the real world.

The city is completely in the wrong here, and the court is more than happy to point this out. Resetting the clock and forcing the plaintiffs to resubmit their permit application would most likely result in the same bullshit they experienced the first time. And the court won’t allow this.

[G]iven the thin arguments the City has advanced including that drag shows are not protected speech, that the record evidence demonstrates the City could bar this application based on “an interest in protecting children;” and because of the plentiful evidence of the animus of the Defendants towards Plaintiffs’ speech, relief granted Plaintiffs cannot assume there will be a fair review the application. To provide Plaintiffs’ effective relief, the City must be ordered to reverse the Permit denial and further be ordered to grant the Drag Stars’ Permit and allow Plaintiffs to hold their event on June 30, 2023. This relief is a mandatory injunction because it forces the City to act a particular way and it is not difficult to foresee additional supervision being necessary to ensure the City complies.

The court says the advertising restriction used to deny the Drag Stars’ permit is bullshit. And that makes it unconstitutional:

The City argues vaguely about confusion and public order being enhanced because applicants would not want to advertise “an event that may not be approved.” One council member speculated that the prohibition may prevent legal issues arising if an event is advertised and a permit is not issued. The City provides no evidence of experience with these interests. And they are wholly undercut by reality. When the City reviewed pending permit applications on March 21, 2023, 12 out of 16 were advertising without a permit—applicants do not appear concerned about permit denial.

[…]

The Advertising Prohibition sweeps within its bounds, with no foundation for its restraints, and impractical effect, communication that may not be restricted under the First Amendment. Therefore, Plaintiffs have demonstrated a substantial likelihood of success on the merits that the advertising prohibition is unconstitutionally overbroad.

And so it goes for every prong of the First Amendment examination. The restrictions were put in place to harm one particular permit requester. The stipulations may have always existed (but still unconstitutional!) but were never enforced until the city found some citizens it didn’t want to work with.

On top of all of this, there’s plenty on the record showing this restriction was enforced for the sole reason of preventing Drag Stars from engaging in protected expression. The court has compiled a long list of actions the city took to specifically block Drag Stars’ applications.

• City officials, including a majority of the City Council led by Tanner, attempted to have the special event permit revoked for the We’re Here drag show—the same viewpoint as Drag Stars.
• Despite counsel to the contrary, a majority of the City Council ordered then City Manager Lenhard to revoke or deny the We’re Here permit.
• In texts among the City Council, Tanner has argued there are no First Amendment issues with her position that drag should not be performed in public.
• Tanner has applauded anti-drag legislation.
• The City Council forced former City Manager Lenhard to resign because he refused to revoke or deny the We’re Here permit and then settled a threatened wrongful termination claim for $625,000.
• In January 2023, Tanner attempted to revoke City-sponsorship for St. George’s Downtown Farmers Market, whose owner hosted a Drag Stars Christmas drag photo booth at another one of its businesses.
• Tanner stated the drag photobooth “violate[d] community standards,” and that she opposes drag “when it involves children” or all-ages locations.
• On March 8, 2023, Reber flagged the Drag Stars Permit application and the application for “Pride 2023” due to the “sensitive nature” of the events.
• The Allies Drag Permit was denied despite no substantial concerns raised by members of the SERC.
• The impetus for investigation of the Allies Drag Show was a targeting text message sent to Tanner.
• Tanner immediately looked for reasons to deny the Allies Drag Show Permit, finding the Advertising Prohibition, and inquired after a business that hosted Drag Stars
• On March 21, 2023, City Officials met and decided to research a never-previously enforced Advertising Prohibition.
• Willis then directed staff to research which pending special event applications were advertising in violation of the Advertising Prohibition.
• A high-school intern was tasked with determining which events were violating the Advertising Prohibition, despite “advertising” being undefined.
• 12 of 16 events with applications pending were found to be “advertising” in violation of the Advertising Prohibition, further undercutting any legitimate City interest.
• Despite claims the City needed to follow the ordinance, on March 31, 2023, a majority of the City Council directed Willis and Downing to strictly enforce a revised Advertising Prohibition—not as written at the time—that exempts out “City-sponsored” events (giving the City Council unfettered ability to exempt any event it agrees with) and recurring events (further delegitimizing any illusory interest the City might have in the Advertising Prohibition).

And so it goes for another page and a half. I encourage you to read it for yourselves.

The city beclowned itself by pretending it was doing normal city business in a neutral fashion while generating tons of evidence showing it was only seeking to find some way to deny a permit to Drag Stars. The court says the whole thing is unconstitutional and that the city cannot enforce the statute against anyone, much less Drag Stars, until it’s rewritten to comply with the Constitution. The city loses. And its legislators have been exposed as hateful people too stupid to understand the first, and most basic, Constitutional right enjoyed by Americans, even Americans these particular Americans hate.

Filed Under: 1st amendment, anti-drag, drag, drag shows, lisa dorn, st. george, utah