Pxfuel

When I was in law school, we were given a very memorable example of how not to do it. Apparently there is or was a law in China against “doing what ought not to be done.”

The point was that with a law like that, there’s no way to carefully adhere to it and thereby avoid getting busted. With laws like that, you’ll know you broke it when they come and get you. If that state of affairs leaves everybody frightened of the state all the time, maybe the state likes it that way.

Whether there is or ever was such a law in China (not everything I learned in law school was true), the point was well made. In our jurisprudence it’s forewarned-is-forearmed: maybe you personally won’t be able to tell what a law outlaws by reading it, but somebody somewhere can. Otherwise it’s unconstitutionally vague.

Laws are like dreams: there will always be people making good money interpreting them. Even a law that seems pretty tight and pretty simple– say, no making truckers drive more than 12 hours a day– can present complications when interpreted. When does this ‘day’ begin in any particular case? What if the trucker wants to work a 14-hour shift? What if there are exigent circumstances regarding the cargo? For that matter, who’s a trucker? If I rent a U-Haul for the weekend, are we talking about me?

Laws try to be clear– or at least they’re supposed to– and reality is messy. The case-by-case interpretation of statutes on the books is the everyday stuff of our legal system, and will always need doing. But some laws are less like the ban on 14-hour trucker shifts and more like the ban on “doing what ought not be done”. Sometimes, the legislators just can’t bring themselves to say what it is they want to be saying– at least, not in the statute itself.

For instance, the “anti-drag” law recently passed in Tennessee does not in fact mention drag. This seems an unfortunate oversight in that the people who wrote it are quite clear that it’s an anti-drag law. We know what drag is; it’s men dressing up as women and putting on a show. What is to be gained by refusing to mention it in a bill that is, absolutely, meant to restrict this practice?

[RELATED: Tennessee governor signs laws targeting drag shows and banning health care for transgender youths]

I can think of at least one reason: embarrassment. Here we have a group of grown-ups, on the government’s dime, spending their time drafting a bill saying MEN CAN’T DRESS LIKE WOMEN IN TENNESSEE! IT’S THE LAW NOW! If you just blurt it out like that, people may notice that it’s absurd. So don’t blurt it out….

Instead the law would restrict “adult-oriented performances that are harmful to minors.” But what is or isn’t harmful to minors? Who makes that judgment call, and on what criteria? We’re a long way from the 12-hour-day-for-truckers rule here. As it turns out, this Tennessee big-rig of a law is on its side in the judicial ditch, having been overturned by U.S. District Judge Thomas Parker. It’s satisfying and, to some extent, reassuring to note that Judge Parker is a Trump appointee.

Vagueness is not the only constitutional infirmity the judge noted. Here in America, many things besides speech are awarded freedom of speech protections. Giving candidates money? Protected. Putting on a show? Well, yeah. At least for now, that liberty interest is taken very seriously indeed, even by some Trump appointees. It sounds kind of snarky to mention that, about Trump appointees, but a politically independent judiciary is not to be taken for granted anymore. A line was crossed when Trump ran on a promise to appoint justices who would make a specific decision– to overturn Roe– and succeeded.

This was an opening skirmish in what may become a long siege; there are at least 15 red states trying to outlaw drag. Now, it may turn out that everyone involved is actually putting on a show: for red-state legislators, it may work just fine to rail against “woke culture” (itself the paradigm of vagueness) or homosexuality (if they’re being frank). If they lose in court and win their elections, they win. Perhaps I lack imagination, but it’s hard for me to believe that these people seriously think that drag performances are ruining America. On that analysis, they get to add the courts to the list of the dark forces they rail against, and are deeply satisfied.

If the attempt to outlaw drag is legally serious– if they feel they need to win in court– this could get ugly. Perhaps we’ll discover that putting on a show is not actually speech as in freedom-of. If that door opens, we may find that other practices that were once protected as speech aren’t anymore. If that door doesn’t open, maybe it will be time to reconsider the freedom part of freedom of speech. Like, can we really afford all this freedom when our whole civilization is being corrupted by these….et cetera.

As to vagueness, perhaps the Tennessee legislature will appoint an interdisciplinary panel of experts entrusted with decisions as to what is “harmful to minors.” If everyone on that panel is avowedly anti-gay, well, what’s vague about that?

Meanwhile, beware the legislature that does not dare spell out what it wants. Chances are, they are doing what ought not be done.

Eric Kuhn lives in Middletown.