Dressing the First Amendment in Drag: An Argument for Why Dress Should be Protected As Symbolic Speech under the First Amendment’s Freedom of Expression Clause

Abstract

The depth of discrimination transcends past a claim under Equal Protection to the realm of the First Amendment through symbolic speech. The evolution of American constitutional law demonstrates that when an individual has been discriminated against based on a classification their only recourse is to make a Fourteenth Amendment, Equal Protection claim. What this author posits, and what this Article intends to establish, is that there are combative solutions to discrimination that can be drawn from other precepts of constitutional law. Through the use of an extreme situation, like Drag Queen Story Time, the author finds a commonsensical solution to discrimination based on conduct that we take advantage of each day—how we dress. This Article investigates the issue of men dressing as women (drag queens) when participating in reading days to children at public libraries. Some public libraries are finding methods to prohibit this activity from occurring at the library. The argument is if the participants of these reading days were not drag queens, there would likely be no controversy. The author concludes that if people believe that a topic needs to be discussed in a public environment, the government should not be able to censor that event based on the content or exterior look of the controversial topic. The author recommends that legislative bodies create regulations that prohibit the discriminatory practices of public libraries to prevent future injustice against symbolic speech. First, this Article explains the history of cross-dressing, shows trends of drag queens reading to children in both small towns and large cities, and discusses the controversy of Drag Queen Story Time that just ended in Lafayette, Louisiana. Second, this Article discusses the Marketplace of Ideas, Self-government, and Autonomy theories of speech to create an image of how the Supreme Court views the flow of conversation and ideas. Finally, this Article defines that libraries are limited public forums and analyzes how the library may regulate speech under intermediate scrutiny.