By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — A federal appeals court Wednesday refused to put on hold a ruling that blocked a Florida law aimed at preventing children from attending drag shows.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, rejected a request by Gov. Ron DeSantis’ administration to place a partial stay on a preliminary injunction issued by U.S. District Judge Gregory Presnell.
The request, if granted, would have allowed the law to be enforced against almost all venues in the state while an underlying appeal of Presnell’s ruling played out. Presnell issued the injunction in a lawsuit filed by the Orlando restaurant Hamburger Mary’s — but also applied the injunction to venues statewide.
In seeking the partial stay, lawyers for the DeSantis administration argued that the injunction should only apply to Hamburger Mary’s.
“An injunction preventing enforcement of the statute against HM (Hamburger Mary’s) fully protects HM from any … harm,” the state’s lawyers argued in a July motion. “In granting broader relief, the district court irreparably harmed the state by ordering it to refrain from enforcing a duly enacted law designed to protect children from exposure to age-inappropriate, sexually explicit live performances.”
In Wednesday’s majority opinion, Judges Adalberto Jordan and Robin Rosenbaum said Presnell ruled that the law was likely overbroad and unconstitutional under the First Amendment. Jordan and Rosenbaum pointed to legal precedents and said, for example, that in “other cases where a law has been found to be overbroad in violation of the First Amendment, we have affirmed injunctions preventing enforcement of a law or ordinance against nonparties as well as parties.”
Judge Andrew Brasher dissented, saying he would stay Presnell’s ruling except as it applied to Hamburger Mary’s.
“HM runs a restaurant and nightclub in Orlando. HM’s injury is the fear of being prosecuted for violating (the law),” Brasher wrote. “A preliminary injunction prohibiting state officials from enforcing that law against HM and anyone acting in concert with HM would completely remedy HM’s injury. Nothing more is necessary or appropriate. Under our precedents, that’s the end of the matter, and the motion for a partial stay should be granted.”
In a July decision rejecting a request for a partial stay, Presnell wrote that the state was trying to “neuter the court’s injunction” by having it apply only to Hamburger Mary’s.
“Protecting the right to freedom of speech is the epitome of acting in the public interest,” Presnell wrote. “It is no accident that this freedom is enshrined in the First Amendment. This injunction protects plaintiff’s (Hamburger Mary’s) interests, but because the statute is facially unconstitutional, the injunction necessarily must extend to protect all Floridians.”
Wednesday’s ruling does not resolve the state’s underlying appeal of Presnell’s decision — it only dealt with the request for a stay while the appeal moves forward.
The law, dubbed by sponsors as the “Protection of Children Act,” 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, which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or 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. In addition, people could face first-degree misdemeanor charges for “knowingly” admitting children to adult live performances.
While the law does not specifically mention drag shows, it came after the DeSantis administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also passed this spring amid a wave of bills in Florida and other Republican-led states targeting LGBTQ-related issues.
Hamburger Mary’s, which said it had run “family friendly” drag shows for 15 years, filed the lawsuit in May, and Presnell ruled June 23 that the law is not “sufficiently narrowly tailored” to meet First Amendment standards.
Presnell’s injunction barred the state Department of Business and Professional Regulation from “instituting, maintaining or prosecuting any enforcement proceedings under the act until further order of the court following a trial on the merits of this case.” The defendant in the case is Melanie Griffin, secretary of the Department of Business and Professional Regulation.
