South Dakota Governor Kristi Noem has done great work promoting free speech in the past. But the Republican has apparently got a huge blind spot: drag shows.
She came under fire this week after calling on the South Dakota Board of Regents to “remove any policy or procedure that prohibits students from exercising their right to free speech” in the exact same statement where she called on them to also “prohibit drag shows from taking place on university campuses.”
Apparently, Noem failed to see that these two calls were, well, directly contradictory. As a result, she got roasted in the comments:
If you completed 7 yourself, you’d know that 4 and 5 are contradictory.
— The First Amendment (@USConst_Amend_I) May 31, 2023
Kristi Noem (R-Pandering)
— D. Lowther (@dlowther715) May 26, 2023
Lmao did you really follow up "free speech" with "prohibit"
— LT² 👻🎃🐳🌳♻️🗳️ (@laureenmt) May 31, 2023
Banning adult college students from hosting drag shows on public college campuses, which are bound by the First Amendment, simply isn’t constitutional.
“Drag shows are expressive conduct that is protected under the First Amendment,” the nonpartisan Foundation for Individual Rights and Expression (FIRE) told BASEDPolitics. “Public colleges and universities cannot impose a ban on drag shows without violating the First Amendment.”
“Bans on drag shows would even prohibit performances of Shakespeare classics where actors commonly perform in drag,” FIRE Legislative & Policy Director Joe Cohn added. “As the Supreme Court held in Papish v. Bd. of Curators of the Univ. of Mo., ‘no matter how offensive to good taste’ some may find it, expression ‘on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”
So, if Noem really cares about protecting free speech, she must abandon her misguided push to ban adults from doing drag on college campuses. If this misguided call is motivated by the likely rare but nonetheless disturbing instances where sexualized drag shows have involved minors — a bizarre phenomenon I’ve harshly criticized — then this is the wrong way to try and address it. A much more narrow rule prohibiting minors from attending any sexually-themed performances that take place on campus, drag or not, could achieve this goal and be much more likely to pass constitutional muster.
But whether one likes it or not, drag is expressive conduct. It is free speech. And it cannot be outright banned under the First Amendment.