Friends of Georges, Inc. v. Mulroy

675 F.Supp.3d 831

FRIENDS OF GEORGES, INC., Plaintiff, v. Steven J. MULROY, in his official and individual capacityas District Attorney General of Shelby County, TN, Defendant.

No. 2:23-cv-02163-TLP-tmp

United States District Court, W.D. Tennessee, Western Division

Signed June 2, 2023

Jacob Webster Brown, Sara Katherine McKinney, Apperson Crump, PLC, Memphis, TN, Melissa Stewart, Craig A. Edgington, Brice Moffatt Timmons, Donati Law Firm, LLP, Memphis, TN, Samuel Morris, Godwin Morris Laurenzi & Bloomfield, P.C., Memphis, TN, for Plaintiff.

James R. Newsom, III, Robert W. Wilson, Office of the Tennessee Attorney General and Reporter, Memphis, TN, Jessica Lyn Indingaro, Shelby County District Attorney General's Office, Memphis, TN, Steven James Griffin, Office of the Tennessee Attorney General and Reporter, Nashville, TN, James Matthew Rice, Tennessee Attorney General's Office Attorney General's Office, Nashville, TN, for Defendant.

Megan Stater Shaw, Pro Hac Vice, Cohen, Weiss and Simon, New York, NY, Samuel Morris, Godwin Morris Laurenzi & Bloomfield, P.C., Memphis, TN, for Amicus Actor's Equity Association.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE

Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government,¹ to discover the truth in the marketplace of ideas,² to express one's identity,³ and to realize self-fulfillment in a free society.⁴ 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,⁵ while making it harder⁶ for the government to regulate it. This case is about one such regulation.

The Tennessee General Assembly enacted a statute criminalizing the performance of "adult cabaret entertainment" in "any location where the adult cabaret entertainment could be viewed by a person who is not an adult." (ECF No. 19-1 at PageID 93.) Plaintiff Friends of George's, Inc. sued under 42 U.S.C. § 1983 to enjoin enforcement⁷ of that statute, alleging that it is an unconstitutional restriction on free speech under the First Amendment, as incorporated to the states by the Fourteenth Amendment of the United States Constitution. After a hearing, the Court issued a temporary restraining order that enjoined enforcement of the statute in Tennessee. (ECF No. 26.) The Court and Parties later agreed to consolidate the preliminary injunction hearing and the trial on the merits under Federal Rule of Civil Procedure 65(a)(2). (ECF No. 30.) The Parties exchanged briefs and the Court held a bench trial on May 22-23, 2023.

After considering the briefs and evidence presented at trial, the Court finds that—despite Tennessee's compelling interest in protecting the psychological and physical wellbeing of children—the Adult Entertainment Act ("AEA") is an UNCONSTITUTIONAL restriction on the freedom of speech and PERMANENTLY ENJOINS Defendant Steven Mulroy from enforcing the unconstitutional statute.⁸

RULE 52(A) FINDINGS OF FACT

When parties try an action without a jury, the Court must "find the facts specially and state its conclusions of law separately." Fed. R. Civ. P. 52(1)(1). What follows are the Court's findings of fact.

Undisputed Facts

The Parties do not dispute that in early 2023, the Tennessee General Assembly enacted the AEA. 2023 Tenn. Pub. Acts, ch. 2 (codified at Tenn. Code. Ann. §§ 7-51-1401, -1407, and § 39-17-901). Governor Bill Lee signed the AEA into law on March 2, 2023. (ECF No. 19-1.)

I. The Adult Entertainment Act

The text of the adult entertainment act reads as follows:

SECTION 1. Tennessee Code Annotated, Section 7-51-1401, is amended by adding the following language as new subdivisions:

( ) "Adult cabaret entertainment":

(A) Means adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; and

(B) Includes a single performance or multiple performances by an entertainer;

( ) "Entertainer" means a person who provides:

(A) Entertainment within an adult-oriented establishment, regardless of whether a fee is charged or accepted for entertainment and regardless of whether entertainment is provided as an employee, escort as defined in § 7-51-1102, or an independent contractor; or

(B) A performance of actual or simulated specified sexual activities, including removal of articles of clothing or appearing unclothed, regardless of whether a fee is charged or accepted for the performance and regardless of whether the performance is provided as an employee or an independent contractor;

SECTION 2. Tennessee Code Annotated, Section 7-51-1407, is amended by adding the following language as a new subsection:

(c)(1) It is an offense for a person to perform adult cabaret entertainment:

(A) On public property; or

(B) In a location where the adult cabaret entertainment could be viewed by a person who is not an adult.

(2) Notwithstanding§ 7-51-1406, this subsection (c) expressly:

(A) Preempts an ordinance, regulation, restriction, or license that was lawfully adopted or issued by a political subdivision prior to the effective date of this act that is in conflict with this subsection (c); and

(B) Prevents or preempts a political subdivision from enacting and enforcing in the future other ordinances, regulations, restrictions, or licenses that are in conflict with this subsection (c).

(3) A first offense for a violation of subdivision (c)(1) is a Class A misdemeanor, and a second or subsequent such offense is a Class E felony.

SECTION 3. This act takes effect April 1, 2023, the public welfare requiring it, and applies to prohibited conduct occurring on or after that date.

(ECF 19-1.)

A. "Harmful to Minors" Standard

The AEA incorporates the "harmful to minors" (id. at PageID 93) standard from Tennessee Code Annotated § 39-17-901:

(6) "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:

(A) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and

(C) Taken as whole lacks serious literary, artistic, political or scientific values for minors;

Tenn. Code Ann. § 39-17-901.

B. Intended Enforcement

The Parties stipulate that Shelby County District Attorney General Steven J. Mulroy intends to enforce "all State of Tennessee laws that fall within his jurisdiction, including the felony and misdemeanor crimes recently codified at [the AEA]." (ECF No. 69 at PageID 955.)

II. Procedural Posture

Plaintiff Friends of George's, Inc. is a registered 501(c)(3) nonprofit organization based in Memphis, Tennessee, that produces "drag-centric performances, comedy sketches, and plays." (ECF No. 69 at PageID 955.) On March 27, 2023, after the AEA's enactment but before its effective date (April 1, 2023), Plaintiff sued here for an injunction. Asserting that the new law violated their First Amendment rights to free expression, Plaintiff sought to "prevent this unconstitutional statute from taking [ ] effect." (ECF No. 1 at PageID 13.) Plaintiff named the State of Tennessee as the lone Defendant in the action. (Id. at PageID 2.) Plaintiff later amended its complaint to add Defendants Bill Lee in his official and individual capacities, and Attorney General Jonathan Skrmetti in his official and individual capacities. (ECF No. 10 at PageID 52.) Defendants moved to dismiss Plaintiff's complaint and to deny its request for a temporary restraining order, arguing that sovereign immunity barred Plaintiff's claims. (ECF No. 19.)

In response, Plaintiff sued Shelby County District Attorney General Steven J. Mulroy in his official and individual capacities. (See ECF No. 26 (referencing Case No. 23-2176).) The Court held a hearing in both cases and issued a TRO as to all Defendants on March 31, 2023—one day before AEA was to take effect. (ECF No. 26.) With the Parties' consent, the Court consolidated the cases and scheduled a brief period for the Parties to conduct discovery. (ECF No. 30.) The Court also consolidated the preliminary injunction hearing with the trial on the merits. (ECF No. 31.) A few weeks later, Plaintiff moved to dismiss all Defendants other than District Attorney General Steven J. Mulroy in his official and individual capacities, which the Court also granted. (ECF No. 60.)

The Court held a consolidated preliminary injunction hearing and trial on the merits on May 22-23, 2023. The Parties then sent proposed findings of fact and conclusions of law. (ECF No. 81, 82.)

The Court's Findings of Fact

The Court makes the next findings of fact from the case's record and evidence presented at the consolidated preliminary injunction hearing and trial.

I. Ms. Vanessa Rodley's Testimony

Ms. Vanessa Rodley testified as Plaintiff's board member and Rule 30(b)(6) representative.⁹ Based on her uncontroverted testimony,¹⁰ the Court finds the following:

A. Plaintiff's Mission and Operation

Plaintiff's mission is to "raise money for LGBTQ non-profits," and to "provide a space outside of bars and clubs where people can enjoy" drag shows. (ECF No. 81 at PageID 1064.) Even though Plaintiff's members believe there is "nothing wrong" with drag shows in age-restricted venues like bars, Plaintiff seeks to provide a space for some non-adults to enjoy drag outside of stigmatized, age-restricted venues. (Id. at PageID 1067-68.) Drag features "male and female" impersonators, but also "nonbinary person[s]." (Id. at 1068-69.) Drag performers in Plaintiff's shows could be males impersonating females or even female actors...