The Grievances Podcast

Is banning drag queens unconstitutional?

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The David and David show closes out with a First Amendment send-off. They discuss:

-A fifth circuit case involving racist accusations and the well-known Journal of Schenkerian Studies

-Book People versus Texas Laws Written in Crayon

-A student organization’s fight for drag queens on campus

-Balancing freedom of speech and explicit content

Show Notes:

–Yascha Mounk for The Atlantic: Stop Firing the Innocent

-Federal Circuit order suspending Judge Newman

-David Lat’s Original Jurisdiction news roundup

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Comments (73)
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  1. Kendall1293

    I was disappointed by David's claim that Carl Trueman is little more than a member of the New/Alt right. Trueman is a serious theologian and not some political hack. You can disagree with some of Trueman's claims in his recent work or what people do with them—I certainly do—but you can't simply throw Trueman in with the likes of Metaxas or Dreher. That's a gross mischaracterization and David should know better than that.

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  2. Grandymitchell

    I took a junior-level Music Literature course at my local Georgetown, Texas university (Southwestern) in the fall of 2020, just after the George Floyd killing. The (white) professor was all in about BLM, systemic racism, etc., and he fashioned the course accordingly. Among the first things we looked into was the brouhaha over Timothy Jackson, the obscure editor of the obscure Journal of Schenkerian Studies. As you mentioned in the podcast, another music theorist, Phillip Ewell, wrote a paper titled "Music Theory and the White Racial Frame," the first sentence of which is "Music theory is white." The thrust of the paper was that music theory in general and Schenkerian analysis in particular suffers from a "white racial frame," which is similar to the systemic racism we have heard and read so much about. Jackson demurred and (probably not a smart move!) decided to invite responses (including from Ewell, who declined) to Ewell's paper, and publish those responses in his Journal. Not all the responses to the article were negative, but some were. Jackson wrote his own response, which I found reasonable and collegial in tone. The upshot was that Jackson was branded a racist (our music lit professor certainly painted him that way), with the inevitably ensuing negative consequences. I saw first-hand the heat and passion you referred to. I will be interested to see how his case turns out. I definitely feel that Jackson was unjustly vilified, but am not sure of the legalities involved.

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  3. J. Mark Graham

    Ok so I know this is three days after the podcast, but thanks David L. for filling in for Sarah, you were a breath of fresh air and I'm super glad you guys made Sarah take a break for a month.

    HOWEVER, I think David F. (whom I subscribed to The Dispatch for, lest one think this criticism is in bad faith) was a little off-base in his criticism of the drag ruling. I agree that it was not a great ruling, and is ripe for getting overturned. But you cannot simply characterize some of those scholars (especially Carl Trueman) cited as members of the "New Right." Someone can take anothers argument out of context and apply it to the law poorly or irrelevantly, which is the case here, and that doesn't make them members of the New Right. Nor does advocating for theologically orthodox understandings of sexuality or even illuminating the philosophical ideas, in a negative light, the origins of todays sexual identity crisis, make one a member of the New Right. I figured you, of all people, would know that David F.

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  4. Joe Fisher

    I love lawyers. All you need do is say porn is political expression for them to abandon all common sense and reason.

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  5. Daniel Poeana

    David Lat, enjoyed listening to you on the show! :) Great guest host!

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  6. Davidbenjaminlat

    1. If you'll forgive the threadjack, Zach and I just wrote a piece for The Atlantic about the Supreme Court ethics scandals that we think will interest many AO listeners. Here's a link (which should let you read whether or not you subscribe):

    https://bit.ly/45pLMxj

    2. On the "is drag sexist or misogynistic" question, I'd like to share a few thoughts based on someone who has been to many, many drag performances over the years. I'd suggest that anyone who comments on the drag issue should disclose how many drag shows they've been to. I can't give you a number because I've lost count; I was a regular in the mid-aughts at the weekly (or was it more than weekly?) drag shows of Barracuda, a celebrated New York gay bar that may have served as the inspiration for RuPaul's Drag Race.

    (a) There are many different types of drag performances and performers, which is why I think you can't paint with too broad a brush. In other words, you can't just shove sexism into the definition of drag, which is what some commenters here are trying to do. That's a classic case of assuming what you're trying to prove, and this is an empirical question.

    (b) I think the fairest thing to say is that while some drag performers and performances are sexist, not all are. Another commenter mentioned Yul Brynner in "The King and I" versus Mickey Rooney in "Breakfast at Tiffany's," which I think is a fair comparison. Some performances by white actors portraying Asian characters are racist, and some are not. Similarly, some drag queens are sexist and some are not.

    (c) Some commenters—again, I wonder how many drag shows they have been to—have argued that drag performers embody feminine stereotypes in an effort to mock women. This is not the case as to many or even most drag performers.

    Let me talk about a few different types of drag—a drag taxonomy, if you will.

    (i) Some drag performers are going for what I'd call "maximum verisimilitude." They simply want to impress the audience by showing just how close they can get to looking and sounding like an actual woman. These performers are not mocking or stereotyping because an over-the-top stereotype would not be realistic, thereby defeating the goal of verisimilitude. Some commenters here mentioned Robin Williams in "Mrs. Doubtfire," which would be a good example of this. I'd also say that the drag performers at our Pride Month event here in Summit, New Jersey, belong to this school.

    (ii) Other drag performers are going for what I'd call "obvious non-verisimilitude." They are supposedly drag performers, but they have done an intentionally poor job of looking like women, and the humor comes from their half-assed effort. Note that the audience isn't laughing at women as a gender; the audience is laughing at the piss-poor job of impersonation done by the performer.

    An (arguable) example here might be Harvey Fierstein portraying Edna Turnblad in "Hairspray": he's dressed and made-up as a woman, but he's so physically large and his voice is so deep that the contrast elicits laughs at various points in the show. But again, the audience isn't laughing in an anti-woman way; they're laughing in a "wow he's so unconvincing as a woman way." (Note: I say "arguable" here because some might try to put Fierstein in the "maximum verisimilitude" school, but I don't think that's right.)

    (iii) Still other drag performers pursue what I'd call "exterior/interior contrast." They want to look as much like women as possible—see "maximum verisimilitude," supra—but they talk and carry themselves in a way that's the opposite of what we'd consider stereotypically female. That is, they aren't stereotyping women because they aren't trying to act like women at all. These performers often have intentionally deep voices—i.e., they on't try to speak like women—and they act in ways that are intentionally "unwomanly." Like certain stand-up comedians in the "shock comedy" school, they are belligerent, combating, rude, and insulting to the audience—not the stereotype of women as polite and demure. Many of the performers at Barracuda back in the day would fall into this category.

    (iv) Although I'd say that most drag queens are cisgender gay men, a small number of drag performers are men dressed as women because they actually want to be women—and eventually they do come out as transgender and transition. A prominent example here would be Candis Cayne, whom I saw at Barracuda decades ago (she was amazing); she eventually transitioned and went on to become the first transgender actress to play a recurring transgender character in primetime, on "Dirty Sexy Money."

    (v) Finally, as I've mentioned before, a small but growing minority of drag performers are drag kings—women who perform as men. I've seen drag kings, and the ones I've seen weren't sexist in either direction, i.e., they werne't mocking men or women.

    Okay, sorry for this overlong and rambling comment. I welcome responses, especially ones with specific examples of drag performers that you have seen in real life, theater, television, or film. Thanks!

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  7. Brian Gadd

    AO listener from its beginning. This is the one podcast I refuse to miss episodes of - I really appreciate David and Sarah's perspectives (and, David Lat, same! You've earned another listener!).

    This is my first time posting. As a community college professor, I'm always interested when you discuss 1st amendment cases, especially in the higher education setting.

    Any chance you might discuss Palsgaard v. Christian (1:23-cv-01228) and/or Stephen Porter v. Board of Trustees of N. C. State University, 22-1712 (4th Cir. 2023)?

    https://www.courtlistener.com/docket/67701322/palsgaard-v-christian/

    https://twitter.com/OrinKerr/status/1677022249403162624
    https://www.courtlistener.com/opinion/9412190/stephen-porter-v-board-of-trustees-of-n-c-state-university/?q=22-1712

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  8. Aaron Mulder

    I'm so glad you mentioned the UNT Music Theory scandal! As an educator and Music Theorist, this has been a topic of great interest to me.

    If I can try to make an analogy to the legal world, Schenkerian analysis might be similar to ISL: a theory rooted in a hyper-narrow reading of a particular historic event that is contextualized beyond its original intent and passed off as a self-evident understanding of natural law.

    But unlike ISL...Schenkerian analysis is the dominant viewpoint in post-secondary music schools. Its glorification of 18th century European harmony and counterpoint is also the primary focus of the College Board's AP Music Theory curriculum. For decades, music students in high school and college have bemoaned the obscurity of the curriculum and its general inaplicability to modern musicianship.

    As for Dr. Ewell's research (most notably, his 2019 publication titled "Music Theory and the White Racial Frame"), he claims that modern academia is intentionally protecting this outdated curriculum in order to preserve the status of white composers as superior to non-white composers. I'm grossly oversimplifying, but I think that's an accurate summary. Dr. Jackson's response (submitted through his Journal of Schenkerian Analysis) was littered with ad hominem attacks on Dr. Ewell and contained many...problematic statements. Naturally, many graduate students at UNT (a very highly regarded music school) took issue with their professor's characterization of black students. Particularly his accusation that if more black families listened to classical (read: "white") music there might be more reputable black people in Music Theory academia. He bascially admitted that Music Theory is framed around whiteness (western-european classical music) and that no other forms of music deserve to have a place in Music Theory.

    As for Dr. Jackson's firing, no amount of "malpractice warning" suffices to express my lack of qualification in speaking to the matter. I strongly believe in "academic freedom." I'm very much a 1st Amendment extremist. However...I don't know where to draw the line between academic freedom and academic ineptitude. Can a Math professor claim "academic freedom" by teaching that 2+2 = 5? Is there a line between free expression and professional obligation when it comes to post-secondary public institutions?

    Love the pod. Thanks for letting me share my thoughts :)

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    1. Davidbenjaminlat

      Wow, fascinating—thanks for all this great insider analysis of the music world!

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  9. SRHuckaby

    The whole 'drag show' thing is kind of funny in that my exposure to 'drag' was my medium sized Texas town (pop 30,000 at the time) high school in the 1980s. One of the yearly highlights was the Powder Puff game, played soon after or even towards the end of the football season. The girls played touch football, and a group of guys dressed as the cheerleaders including "implants", wigs, make up and always at least one very special choreographed cheer and pom pom routine to music. It was always funny, well received and expected. Is that offensive? I can't imagine why or how it could be ... and that is what some 'drag' is about. Would I be offended at a drag show that was highly sexualized with men in quite revealing costumes? Personally, yes. But I also would be offended at a strip club and some musical performances with risque lyrics. I don't think any of that should be banned, although quite possibly age restricted.

    I'm always interested in what we consider 'offensive' and 'allowed' and why I want a very strong 1A because people are fickle. A couple I knew years ago didn't want to pay for a babysitter, so they took their children, ranging in age from 2 to 6, to R rated movies and "hid their faces" if it got "too bad". But they were "super conservative" ... uhhh something gives here! I feel like it's those type people who are legislating in Texas right now. Wanting to tell others what to do -- but then failing to see how what they do might be a little too similar.

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  10. Avatar photo
    Tomjedrz

    I do think that we are over-thinking and over-complicated the "drag queen" thing in the public square. If it is OK for a woman to dress in a particular way and perform in a particular fashion, there is no reason a man should be prohibited from doing the same. We all understand pretend and the wearing of costumes. If OTOH, the content or performance is sexualized, then parental consent and restrictions to prevent children from being exposed are both reasonable and constitutional.

    OTOH, it is nonsensical to think that the continued push by the LGBTQ community to get drag queens and sexually explicit material in front of children is not about indoctrination and normalization, and it is legitimate for parents and those with differing views to oppose it. We should not allow our schools and libraries to be used as political brainwashing institutions.

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    1. Avatar photo
      Driven away by the bigots

      Sorry, I can’t allow you to say they’re (the whole LGBT community!?) indoctrinating children without a challenge. Because words have meaning, how are they indoctrinating children? What is the doctrine they are pushing? Can you share a link?

      You don’t get to claim that it’s nonsensical to challenge your assertion unless or until you back it up.

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