Madonna’s iconic Jean Paul Gaultier cone bra gets a pass under a new bill. Credit: Barry Caruth

The Arkansas chapter of the American Civil Liberties Union weighed in on this week’s complete overhaul of Rep. Mary Bentley‘s and Sen. Gary Stubblefield‘s bill to classify drag performances as adults-only entertainment, thereby relegating drag to out-of-the-way locations and limiting who could see it.

The bill flew through a Senate committee despite a strong show of opposition from the LGBTQ+ community and their supporters. Then the bill passed through the Senate, despite heartfelt testimony from woefully outnumbered Democrats.

But on Wednesday, something odd happened. At the bill’s next stop in the House Committee on City, County and Local Affairs, an amendment was quietly added to pretty well gut it completely. The initial iteration of the bill was laser-focused on policing drag shows specifically. But with the amendment, every single reference to drag shows and drag performances is erased.

Now, the bill as amended reworks the state’s definition of adult-oriented businesses by lassoing in nude and seminude performances that expose genitalia or breasts either real or prosthetic, or that depict sexual activity. The bill keeps anyone under 18 from viewing these performances, and bans these shows from happening on public property or with public funds.

Which means that while it’s completely different, the bill is still not great. Supporters still view it as a bill targeting drag performances, even though that’s no longer what it seems to be. The sole person testifying for the bill Wednesday seemed to think it will ban drag queen story hours at public libraries. But considering that drag queens wear multiple layers of tights and foundation garments, with every square inch of skin covered in clothing and makeup, the amended bill seems unlikely to apply to drag shows anymore at all.

SB43 now is so broad and leaves so much up to interpretation that it seems to either police everything, or nothing.

The blog for Arkansas’s chapter of the American Civil Liberties Union had this to say: 

“Yesterday’s amendment to the bill no longer explicitly targets LGBTQ people. However, it does apply to every person in Arkansas in overly broad ways that clearly violate the First Amendment. SB43 still curbs free speech and expression so much that it could even prevent some mainstream artists from performing on public property, and make it illegal for Arkansans to attend those performances. It still inherently invites abuse in enforcement, especially considering the anti-LGBTQ rhetoric from sponsors and supporters of the bill.”

Should SB43 pass, will that mean Madonna’s penchant for satiny cone bras would render her unable to put on a show in Arkansas, Rep. Ashley Hudson (D-Little Rock) wanted to know. Bentley said no. Bentley also said Hooters and Twin Peaks servers can still wear tiny tank tops and lingerie, even with young diners in the house, under the reworked bill.

So, what does “seminude” mean, then? Rep. Andrew Collins (D-Little Rock) asked, but Bentley didn’t answer that one. She said a judge will make those kinds of calls. Collins noted the Schoolhouse Rock!-level fundamental that shaping the intent of laws is the job of lawmakers, not judges. Bentley was not swayed, nor were the committee members who voted in favor of the amendment and the bill, moving it along for a vote in the full House.

The wholesale reworking of the bill came after Attorney General Tim Griffin got a hold of it, and the new version has the blessing of both his office and the governor’s. The behind-close-doors machinations are unclear, but maybe the original version of the bill was just so baldly unconstitutional that the state didn’t much feel like going to court over it.

But that still leaves us with this new version of Senate Bill 43, a puritanical blitz on all things “prurient.”

This new iteration will have to go back to the Senate side for a fresh look because of the amendment, but it’s likely to pass. When it does, it may be that the bill is so broad as to be unenforceable, and everyone will just ignore it. Or, it could become another tool for morality policing, that favorite pastime of pearl-clutching Arkansas legislators.

Austin Gelder is the editor of the Arkansas Times and loves to write about government, politics and education. Send me your juiciest gossip, please.