Arkansas House approves bill that would restrict 'adult-oriented performances'

‘Adult-oriented’ bill passes 78-15, now returns to Senate

Rep. Tippi McCullough, D-Little Rock, speaks against SB43, which would define drag shows as an adult-oriented performance, during the House session on Monday, Feb. 6, 2023, at the state Capitol in Little Rock. .(Arkansas Democrat-Gazette/Thomas Metthe)
Rep. Tippi McCullough, D-Little Rock, speaks against SB43, which would define drag shows as an adult-oriented performance, during the House session on Monday, Feb. 6, 2023, at the state Capitol in Little Rock. .(Arkansas Democrat-Gazette/Thomas Metthe)

The Arkansas House on Monday endorsed along party lines a proposed law that aims to restrict "adult-oriented performances."

Senate Bill 43, which previously attempted to regulate "drag performances," passed in a 78-15 vote. The legislation, filed by Sen. Gary Stubblefield, R-Branch, will return to the Senate for further consideration.

The proposed law defines an "adult-oriented performance" as a show "intended to appeal to the prurient interest and that features a person who appears in a state of nudity or is semi-nude; the purposeful exposure, whether complete or partial, of a specific anatomical area, or prosthetic genitalia or breasts; or a specific sexual activity."

The legislation would bar an "adult-oriented performance" from taking place on public property, admitting minors or being "funded in whole or in part with public funds."

Of the 18 Democrats in the House, 15 voted against the bill. Rep. Milton Nicks Jr., D-Marion, and Rep. Jay Richardson, D-Fort Smith, voted present. Rep. Mark Perry, D-Jacksonville, did not cast a vote.

When presenting the bill to the House, Rep. Mary Bentley, R-Perryville, said the legislation would address concerns raised by constituents and was needed to protect the innocence of children.

"This is about protecting kids and not sexualizing our children," she said.

After lawmakers asked during a committee meeting last week if Arkansas children were being exposed to "adult-oriented performances" in public, Bentley said she was "inundated with pictures of what is happening here in Arkansas."

She read aloud from a letter submitted by a man who claimed children were invited to participate in a drag show in Batesville involving performers whose "genital areas" were exposed.

Minority leader Tippi McCullough of Little Rock was the only lawmaker who spoke against the bill before the vote in the House. McCullough criticized the legislation, saying it contained undefined terms -- including "prurient interest" and "public property" -- that could influence its enforcement.

"I think if people are going to get penalized for doing something, they should understand what the parameters are of that and what the definitions are," she said.

McCullough said she was confused about the criminal or civil penalties the bill might carry and how the proposed law could affect artistic endeavors such as the musical "Chicago." She noted Arkansas already has statutes that regulate obscene material.

McCullough echoed many concerns voiced during a Feb. 1 meeting of the House Committee on City, County, and Local Affairs. During the meeting, lawmakers endorsed the bill and the amendment that shifted the legislation to restrict "adult-oriented performances."

When asked during the meeting how the bill would be enforced, Bentley said it would be enforced "like we enforce every other law" that restricts access to adult-oriented businesses.

Rep. Andrew Collins, D-Little Rock, questioned how the definition of "semi-nude" and an "adult-oriented performance" in the bill would function.

Bentley said judges would largely be responsible for determining how the bill was interpreted and applied.

When asked why the bill was necessary given that laws already exist restricting access to sexually explicit material, Bentley said "we've not drawn the line enough. I think we've seen this being pushed a little out front and open."

Rep. Ashley Hudson, D-Little Rock, said she was concerned about how the bill might impact the First Amendment rights of performers.

"Why isn't the solution to simply not take your kids if you're worried about exposing them to these types of performances?" Hudson said.

Opponents of the bill who testified during the committee meeting said the legislation could affect the ability of transgender people to alter their appearance in public and require businesses that host "adult-oriented" drag performances to relocate given statutory requirements on "adult-oriented businesses."

Sarah Everett, policy director of the American Civil Liberties Union of Arkansas, said the unclear language of the bill made it unconstitutional.

The original version of the bill aimed to classify "drag performances" as an adult-oriented business.

The legislation's previous definition of "drag performance" required that at least one performer exhibit a "gender identity that is different from the performer's gender assigned at birth," that the performance be held before an audience of at least two people for entertainment and that it appeal to "the prurient interest."

Before the bill was amended to address "adult-oriented performances," Bentley said she and other lawmakers had received emails from schools concerned about how the bill could affect fundraising performances. The amendment would allow high schools to put on shows, including "male beauty pageants," she said.

The Arkansas Senate on Jan. 24 handily approved the original version of the bill along party lines.

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