My name is Eli Baumwell, and I am the Advocacy Director for the American Civil Liberties Union of West Virginia. I am here to speak against the proposed ordinance relating to minors and adult live performances.
The substantive portion of Florida Senate Bill 1438, now codified as 827.11 of the Florida code, defining an “adult live performance” differs by only a few minor words, phrases and citations to the ordinance before you today.
That law was blocked by a federal judge just this week. Notably, the Judge found that the law is, on its face, content-based regulation. When a law attempts to infringe on a fundamental right, like the freedom of expression, and is facially content-based, the appropriate standard is strict scrutiny – the highest level of review. Here the Judge found that the law fails, in multiple ways to meet that standard, but that the law is also vague and overly broad.
Do you expect your ordinance to fare any better?
But let’s go beyond that. This law aims to prevent children from seeing “adult live performances.” Who could be against that, right? Except that it is wholly redundant. West Virginia Code already authorizes counties to regulate adult entertainment and obscenity, and Putnam county does so, to the fullest extent of the law and the Constitution.
We know what this is about – it's about drag shows. The Florida law was a modified version of a Tennessee law (which has also been enjoined by the federal courts), except that the Tennessee law explicitly mentioned drag. But the dog whistle is still loud and clear. As the judge in the Florida case notes, legislative debate focused almost exclusively on drag. The law is colloquially known as a drag ban. Across the country laws and ordinances are popping up and the rhetoric around them is often focused on drag.
Let’s be clear. Drag is an art form with a long history. It has cultural and political value. And Drag. Is. Not. Obscene.
In fact, this will not actually stop drag performances. It won’t prohibit minors from being able to attend drag performances. It’s a do-nothing, redundant ordinance that panders to a constituency that seeks to substitute their judgement and mores for everyone else’s.
But this unconstitutionally vague window dressing does have potential real harm. Because the first time a public official acting under the “color” of this law unconstitutionally prohibits or punishes someone for non-violations, they have just subjected themselves, and this county to a federal civil rights violation claim.
Is that a risk you’re willing to take just so you can pander?
Finally, let’s not pretend that the timing of this – mere days after Putnam’s Pride event – is coincidence. So let me remind you. Pride started as a protest. Pride remains a protest. And if you’re uncomfortable by how loud and visible Pride is, continue attacking the community, and I’m sure they’ll show you just how much louder and more visible they can get.