By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — Gov. Ron DeSantis’ administration is appealing a federal judge’s ruling that blocked a new law aimed at prohibiting children from attending drag shows — and is seeking to carry out the law while the appeal is pending.
Attorney General Ashley Moody’s office on Tuesday filed a notice that is a first step in appealing a preliminary injunction issued last week by U.S. District Judge Gregory Presnell in a lawsuit filed by the Orlando restaurant Hamburger Mary’s.
Lawyers in Moody’s office on Wednesday filed a motion seeking a stay, which would allow the state to enforce the law except against Hamburger Mary’s. If granted by Presnell, the stay would remain in effect while the 11th U.S. Circuit Court of Appeals considers the case.
The motion said the “injunction also sweeps beyond plaintiff (Hamburger Mary’s) to nonparties who may wish to expose children to live obscene performances in violation of the statute. The portion of the injunction that applies to nonparties threatens Florida, and the children Florida enacted the law to protect, with irreparable harm, and is beyond the court’s remedial authority.”
Presnell issued an order Thursday requiring attorneys for Hamburger Mary’s to respond to the motion by July 10.
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, 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.
Hamburger Mary’s, which says it has run “family friendly” drag shows for 15 years, filed the court challenge last month, contending the law violates First Amendment rights. Presnell agreed, saying in part the law is not “sufficiently narrowly tailored” to meet First Amendment standards.
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. 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 issuing the preliminary injunction, Presnell wrote that law “is specifically designed to suppress the speech of drag queen performers” and the state “already has statutes” that protect children from seeing obscene performances.
“Defendant professes that a statewide preliminary injunction would ‘harm the public by exposing children to ‘adult live performances,’” Presnell wrote. “This concern rings hollow, however, when accompanied by the knowledge that Florida state law, presently and independently of the instant (new) statutory scheme, permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian. Such R-rated films routinely convey content at least as objectionable as that covered by (the new law).”
The law took effect May 17, but Presnell’s injunction barred the Florida 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.”
In addition, he rejected a motion by the state to dismiss the lawsuit.
The state’s notice of appeal, as is common, does not detail arguments it will make at the Atlanta-based appeals court. Along with challenging the preliminary injunction, the state is appealing the denial of its motion to dismiss the case, the notice said.
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