Saying it is unconstitutionally vague, a federal judge on Friday blocked a new Florida law aimed at prohibiting children from attending drag shows,
Operators of Orlando restaurant Hamburger Mary’s, which has run “family friendly” drag shows for 15 years, filed a legal challenge shortly after Gov. Ron DeSantis signed the law restricting children from attending “adult live performances.”
In part, the challenge alleged the law “prohibits protected speech based on the identity of the speaker” and is vague and overbroad.
U.S. District Judge Gregory Presnell’s ruling Friday rejected a state motion to dismiss the case and granted the restaurant operators’ request for a preliminary injunction to block regulators from enforcing the law, which was championed by DeSantis and Republican legislative allies.
“We are extremely pleased with this first win,” Melissa Stewart, a Memphis, Tenn.-based lawyer who represents the restaurant, said in a statement. “This law is unconstitutionally vague, over-broad, and clearly targeted at drag performers. This preliminary injunction will protect the First Amendment rights of not only our clients, but of the LGBTQIA community across Florida while we move forward with the next steps in this litigation.”
The law, dubbed by sponsors the “Protection of Children” bill, would prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience and in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement, specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”
Regulators would be able to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior.
But Presnell said the state “already has statutes that provide” protection from obscene behavior.
“Rather, this statute is specifically designed to suppress the speech of drag queen performers,” he added.
The judge found that lawmakers failed to “narrowly tailor” the law, as required for government-imposed restrictions on speech.
The law does not define “child,” “lewd conduct,” “lewd exposure of prosthetic or imitation genitals or breasts,” or “live performance,” which “could conceivably range from a sold-out burlesque show to a skit at a backyard family barbecue,” Presnell wrote in the 24-page ruling.
The judge said “one must resort to state jury instructions to find any definition of ‘lewd conduct.” Such jury instructions, Presnell added, serve “only to further broaden the scope of what may be covered by using terms like ‘wicked,’ ‘lustful,’ and ‘unchaste.’”
Such terms are “vulnerable to broad subjectivity,” which “ultimately leaves an individual of common intelligence” to guess at their meaning, the judge wrote.
“A fully clothed drag queen with cleavage-displaying prosthetic breasts reading an age-appropriate story to children may be adjudged ‘wicked’ — and thus ‘lewd’ — by some, but such a scenario would not constitute the kind of obscene conduct prohibited by the statutes” in previous case law, Presnell wrote.
The law’s “focus” on “‘prosthetic or imitation genitals or breasts’ raises a host of other concerns not simply answered — what are the implications for cancer survivors with prosthetic genitals or breasts? It is this vague language — dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech…,” Presnell, who was appointed to the federal bench by former President Bill Clinton in 2000, added.
State Rep. Anna Eskamani, D-Orlando, praised Presnell’s decision, calling it a “legal win for the people of Florida and the First Amendment.”
“The United States should not be hindering free speech or erasing communities,” Eskamani said in a statement. “In deep contrast, we should respect different cultural identities and embrace freedom of expression.”
The Republican-controlled Legislature passed the measure after the DeSantis administration cracked down on venues in South Florida and Central Florida where children attended drag shows. As an example, the administration targeted the liquor license of the Hyatt Regency Miami hotel and Orlando’s Plaza Live for hosting “Drag Queen Christmas” events in December.
In the Hamburger Mary’s lawsuit, attorneys for the DeSantis administration argued that blocking the law would “harm the public by exposing children to ‘adult live performances.’”
But Presnell said the state’s concern “rings hollow” because minors accompanied by parents or guardians are allowed to attend R-rated movies that “routinely convey content at least as objectionable as that covered by the law.”
Also “indicative” of the Legislature’s failure to narrowly tailor the law “is its inevitable clash with the ‘Parents’ Bill of Rights’ and other laws,” Presnell wrote, referring to a a state law mandating that “all parental rights are reserved to the parent of a minor child in this state…including…the right to direct the upbringing and the moral or religious training of his or her minor child.”
Presnell’s ruling was the second legal win for the LGBTQ community in Florida this week. U.S. District Judge Robert Hinkle ruled that a state prohibition against Medicaid coverage for gender-affirming care such as puberty blockers and hormone replacement therapy was unconstitutional, calling the policy “invidious discrimination” against transgender people.
–Dara Kam, News Service of Florida
Sherri S says
Yes, anther step in the right direction! We must continue to fight & support those that do against these discriminatory laws that DeathSantis is trying to pass. Let’s make Florida a place for all to live, let’s fight’s discrimination and racism.
HayRide says
There sure are some sick people in this world, no child should be subject to this
Skibum says
It is art, HayRide, just their way of being artistic, not porn and I have NEVER once observed any parent or adult dragging their kicking, screaming kids to a drag performance or forcing this type of art and culture on anyone. If you choose to believe the lies of those who say otherwise, it might open your eyes to actually go for a burger at any one of the various Hamburger Mary restaurants here in FL and see for yourself. You know, so you can see the TRUTH, and dispel yourself of the vulgar, obscene paranoia that would love to have everyone believe otherwise. There are forms of art that are not my cup of tea. Some artists just make me wonder “what in God’s creation is this artist tryin to say with that piece of art?” But I don’t go to such an extreme to try to prevent anyone else from seeing and enjoying what I find to be uninteresting or objectional. To each his or her own when it comes to the rainbow variety of art. Our idiot gov is making more and more enemies by being so extreme, enemies even within his own base of support. And now the entire nation of voters get to see what he is all about, and watch as he is publicly slapped down by the courts for having signed into law such extreme legislation that violates the very tenants of constitutional freedoms in America.
CinCin says
Kudos for your accurate remarks. HayRide is likely just another misinformed person who just rejects anything/one different.
Sherry says
@ hay ride. . . Kid should not be subjected to what “exactly”???
1. People in costumes? Should we get rid of Movies? TV? Halloween? Santa Claus? Clowns at circuses/birthday parties? Weddings?
2. People in make up? Same as above. . .
3. People who read to children? There goes school teachers!
This article says that even the Republicans found no lewd behavior. What precisely are you so very afraid of???
Laurel says
Sherry: Let’s not forget about Shakespearean actors.
Sherry says
@Laurel. . . absolutely!
I’m guessing ole’ hay ride has no idea that originally female characters in Shakespearean plays were played by younger men dressed up as women . . ironically due to “PURITAN” restrictions.
Nephew Of Uncle Sam says
Now Ashley and The Ronnie Show will waste more Florida taxpayer dollars appealing.
Joshua says
Who doesn’t DeathSantis discriminate against, oh only those that contribute to his campaign. He is following in his worshiper’s play book. No wonder his poll ratings continue to go down.
Laurel says
Hubby and I recently had the joy of seeing Brookgreen Gardens in South Carolina. It’s filled with beautiful flowering plants, water features and one of the most fabulous collections of American sculpture available to the public. American sculptor is often very anatomically correct, showing the beauty of the human body.
We were fortunate to have a guided tour. I could not help myself for the first three statues, or statue scenes, to comment out loud that “This is illegal in Florida,” which caused laughter each time. Who would think Florida would be so far behind South Carolina, a very conservative state? Florida has become a joke.
My favorite work of art there was “Fountain of the Muses”: https://en.wikipedia.org/wiki/Brookgreen_Gardens#/media/File:Brookgreen_Gardens_Sculpture15.jpg.
I know I went a tad off course, but I think Republicans are really, darkly obsessed with sex. In my opinion, DeSantis is a moron.
Sherry says
@Laurel. . . you should see our new neighbors’ faces (here in Sausalito) when we say that we just moved here after living 17 years in Florida (which is where we both were born). Their first reaction is kindness, “its OK, we’ve got you, aren’t you so glad you escaped?”. Then astonishment, “how did you endure it? Florida has changed so much.”
Unfortunately, generally, Californians don’t realize just how dangerous Fascist DeSantis is. Thank goodness DeSantis actually is a small minded “moron”. . . who is unelectable in the general election.
DeSantis doesn’t get it that it is trump’s weird ass “victim/bully”charisma (which intelligent people see right through) that has trump’s “cult” following supporting him “NO MATTER WHAT”.
Laurel says
Sherry: The latest I heard is Trump supporters believe the implosion of the submersible looking for the Titanic was a Biden plot to kill one (or more) of the members aboard.
Trump supporters are not the brightest bulb in the factory.
Michael Cocchiola says
Wonder if this law would prohibit kids from attending an adult bible reading.