Freedom of Expression | Protected Speech

Federal Judge Rules Utah City Violated First Amendment by Denying Drag Show Permit

pride parade
A person holds a rainbow flag during the 2022 NYC Pride parade in Manhattan, New York, June 26, 2022. (Reuters/Jeenah Moon)

By Susanna Granieri

A Utah-based drag show group will be permitted to host an all-ages drag show at a public park in the city of St. George, a federal judge ruled June 16, stating the city discriminated against the group and its protected speech.

The group, Southern Utah Drag Stars and its CEO, Mitski Avalōx, sued the city in May after it attempted to stop the show by denying permits. The complaint, filed in the U.S. District Court for the District of Utah, was filed against the city “to remedy flagrant and ongoing violations of their free speech, due process, and equal protection rights.”

U.S. District Judge David Nuffer granted the group’s request for a preliminary injunction, requiring the city to issue a permit for the show, “Allies Drag Show.”

“Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces,” Judge Nuffer wrote. “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.”

The city of St. George denied the requested permit based on seldom used ordinances that “prohibit special event advertising until a final event permit is issued,” the decision stated. “The record shows the use of this prohibition was a pretext for discrimination.”

In the decision, Judge Nuffer wrote that the city’s “unprecedented enforcement” of the ordinance was “unconstitutional discrimination” and that the show was “protected speech.”

“Given current political events and discussions, drag shows of a nature like the planned Allies Drag Show are indisputably protected speech and are a medium of expression, containing political and social messages regarding (among other messages) self-expression, gender stereotypes and roles, and LGBTQIA+ identity,” Judge Nuffer wrote.

Judge Nuffer added that all citizens’ constitutional rights must be upheld by the actions of city officials, noting that it isn’t the role of elected officials to “merely serve the citizens who elect them, the majority of citizens in the community, or a vocal minority in the community.”

“The governing body and its members must never use pretended or pretextual reasons to hide the real reasons for denying individuals their constitutional rights,” he wrote. “This is not only a fundamental breach of their oath and trust but also less than honest.”

Pushback against the allowance of drag performances in the city have been prevalent over the past year. Councilwoman Michelle Tanner, who is noted in court filings to have argued that drag shows are a bad influence on children, was critical of City Manager Adam Lenhard who declined to deny a permit for another drag show hosted at a different city park. Lenhard was fired as a result of the controversy, and according to a records request from the Salt Lake Tribune, he accepted a $625,000 settlement in lieu of suing the city for wrongful termination.

Twenty states have taken steps to restrict drag show performances in public spaces and in front of children. Judge Nuffer’s decision comes weeks after a federal judge in Tennessee ruled that a similar law prohibiting drag shows in public places violated the First Amendment.

Tennessee’s Anti-Drag Law is ‘Unconstitutionally Vague,’ Federal Judge Rules

Southern Utah Drag Stars is represented by law firm Jenner & Block, the American Civil Liberties Union, (ACLU), and the ACLU of Utah. Valentina De Fex, senior staff attorney for the ACLU of Utah, said in a press release following Judge Nuffer’s decision that “Quite simply, drag is protected by the First Amendment.”

“The city of St. George’s selective and discriminatory refusal to permit a family-friendly drag event impermissibly silenced LGBTQ+ Utahns and violated our client’s constitutional rights,” De Fex said. “This ruling is a win for not just our client – who will now be able to hold an event on June 30 that celebrates inclusivity and joy – but for all people in St. George and throughout Utah. We are grateful for the court’s decisive action to disallow attempts by city officials to implement subjective viewpoints of what they deem appropriate to silence and erase LGBTQIA+ and gender diverse communities throughout the state.”

May 23, 2023 — Southern Utah Drag Stars Complaint

June 16, 2023 — U.S. District Judge David Nuffer Grants Preliminary Injunction