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Bill seeks to regulate 'obscene' performances on campuses

Drag performer Dixie Divine testifies to the Senate State Affairs Committee against House Bill 1178
Josh Chilson
Drag performer Dixie Divine testifies to the Senate State Affairs Committee against House Bill 1178

A proposal to limit so-called “obscene" performances on public university campuses has advanced to the Senate floor.

Though some are concerned the bill could chill free speech on campuses – particularly in reference to drag performances - proponents say there is no specific targets for this proposal.

The bill would codify what is already general policy from the state Board of Regents – any performance which fails the “Miller test” cannot happen on taxpayer-funded campuses.

The Miller Test was established by the US Supreme Court in 1973 following Miller V. California to gauge obscenity in a formal manner. Speech deemed obscene is not protected under the First Amendment.

There are three criteria for the test. First, an average person applying contemporary community standards response. Second, a patently offensive use of sexual conduct or excretory functions, and third, whether the work lacks serious literary, artistic, political, or scientific value.

In turn, prime sponsors describe the bill as a “backstop” to the current policy. Sen. Al Novstrup said Friday in Senate State Affairs Committee this bill will not stop drag shows on campuses more broadly.

“They’d have to fail all three of those tests, then at that point they’re defined as obscene live conduct," Novstrup said. "So, if you were to have a drag show and it doesn’t violate all three of these, go ahead and have your drag show.”

However, codifying an internal policy left some with questions. Sioux Falls Democratic Sen. Reynold Nesiba opposed the bill, arguing it could contribute to frivolous lawsuits aimed at the university system.

"This bill does nothing," Nesiba said. "We can’t come up with a single example in Board of Regents history where this has ever happened. They’ve prevented this from happening. Then, the proponents reached out to the Board of Regents and the Regents said ‘yeah, okay, we’ll have a policy against it.’ They did exactly what the proponents wanted, but we’re going to engage in government overreach, and we’re going to pass a bill to go even further.”

The proposal was widely opposed by student organizations, including the University of South Dakota’s Spectrum chapter and the South Dakota Student Federation. Drag performer Dixie Divine also testified against the bill.

Despite these concerns, Nesiba was the lone dissenting vote. The bill will next be heard on the Senate floor.

C.J. Keene is a Rapid City-based journalist covering the legal system, education, and culture