South Dakota legislators move to ban drag shows on college campuses, prohibit minor attendance
Opponents say the move to keep state institutions from hosting drag performances is a violation of free speech and expression.
PIERRE, S.D. — Lawmakers are taking aim at “lewd and lascivious content” that stems from any public dollars, facilties or state institutions.
The specific naming of the Board of Regents in the newly introduced House Bill 1116, as well as the final section of the bill specifically banning shows “where a performer exhibits a gender identity that is different from the performer's biological sex,” stems from the outrage that resulted from a drag performance at South Dakota State last year, according to proponents of the bill.
While opponents say the proposal goes too far in its provisions and harms free expression, the bill’s drafters say the actions taken would sit well within the state’s ability to regulate content that is purely “prurient” and lacks scholastic value.
According to Samantha Chapman, the American Civil Liberties Union of South Dakota’s advocacy manager, the wide scope of the bill undermines free speech on public campuses in the state.
“This bill violates the First Amendment rights of students and student organizations in South Dakota to build community and express themselves through drag performances. The First Amendment protects freedom of speech and expression, no matter what you are wearing,” Chapman said. “It’s discriminatory and unconstitutional to single out male and female impersonators in a bid to shut down their speech.”
Chapman added that the bill’s proposed banning of “literature presenting obscene live conduct” would have several consequences in the classroom: she pointed to Shakespeare’s ‘Twelfth Night’ and ‘Merchant of Venice,’ among several other examples, of “classic literature depicting the existence of transgender individuals and drag performances that have long been included in educational standards.”
Yet Rep. Chris Karr, the prime sponsor of the bill in the House, disagreed with what he called the ACLU’s “knee-jerk reaction,” saying that the carving out of obscene conduct and materials from free speech and free expression — and, conversely, the protection of works with some scholastic value — is well spelled out in constitutional jurisprudence, pointing to Miller v. California, where the Court ruled that purely prurient acts, defined under state law, could sit outside free speech and expression protections.
“We are using that language in that test called the Miller test. And there's three criteria. It also spells out that it wouldn't include something that is for scientific use or artistic use,” Karr said. “So if it's a book, it's a play, if it's got some redeeming value, then it doesn't fall into that category here, but it does if it’s for just simply what they call prurient use.”
Though the Board of Regents during its Dec. 21 meeting vowed to develop a “Minors on Campus” policy at the state’s public colleges and universities in response to the event, Board of Regents President Pam Roberts also indicated that legislation on the subject would arrive during the oncoming session.
"We respect the First Amendment, but none of us are happy about children being encouraged to participate in this event on a university campus," Roberts said. "I have asked our presidents to place a moratorium on minors attending events sponsored by student organizations on campus, for now. In addition, I have instructed our staff to work with the administration and legislative leaders on legislation to clarify the law in this area."
That clarification appears to have arrived. The proposed legislation, which currently has 17 total sponsors and co-sponsors, defines “lewd or lascivious content” in various ways — “any program, event, or literature presenting obscene live conduct… or obscene material…that depicts, describes, or simulates…specific sexual activity…specific anatomical areas…nude or seminude adults” as well as “adults who remove clothing for the entertainment of one or more individuals.”
The final point of “lewd or lascivious content” takes specific aim at drag shows, banning “any physical human body activity…where a performer exhibits a gender identity that is different from the performer's biological sex through the use of clothing, makeup, or other physical markers, for the predominant purpose of appealing to a prurient interest.”
The proposal also adds definitions to state laws meant to protect intellectual diversity, carving out these protections for materials spelled out in the bill.
“We're not just going to pick out one specific event or issue,” Karr said. “We are going to use what is considered as obscene and say we're not using our state resources to fund something that falls into that category. That's simple.”
Another bill, introduced by Rep. Scott Odenbach on the afternoon of Jan. 24, includes drag performances in a list of harmful materials that may not be disseminated to minors.
"What people do in their private lives at a private venue, that's one thing," said Odenbach, who added his name as a co-sponsor on Karr's bill as well. "But what they do on public property and when they invite little children to something like this that we thought was pretty clearly within the obscenity statutes, many of us in the legislature had a problem with that."