U.S. Supreme Court rejects DeSantis administration’s request to overturn a court’s decision that Florida’s law on drag shows violates the First Amendment

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — A divided U.S. Supreme Court on Thursday rejected a request from Gov. Ron DeSantis’ administration that would have allowed enforcement of a new state law aimed at preventing children from attending drag shows.

U.S. District Judge Gregory Presnell this summer issued a statewide preliminary injunction against the law, finding that it violated First Amendment rights. The ruling came in a lawsuit filed by the Orlando restaurant and bar Hamburger Mary’s.

The DeSantis administration appealed Presnell’s ruling to the 11th U.S. Circuit Court of Appeals and also sought a partial stay that would have allowed the state to enforce the law against all venues in Florida — except Hamburger Mary’s — while the legal battle continues to play out.

After Presnell and a panel of the Atlanta-based appeals court rejected the state’s request for a partial stay, lawyers representing Florida Department of Business and Professional Regulation Secretary Melanie Griffin, the named defendant in the case, took the issue to the Supreme Court.

But the Supreme Court denied the request Thursday, effectively keeping in place the statewide preliminary injunction.

The decision did not give a full breakdown of the justices’ positions, but it said Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have granted the request for a stay. Also, the document included a brief explanation from Justices Brett Kavanaugh and Amy Coney Barrett about their position on denying the stay.

“No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case,” Kavanaugh wrote, referring to enforcement against venues other than Hamburger Mary’s. “The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief. This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation.”

Barrett joined Kavanaugh, except for one issue that he included in a footnote.

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 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.

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).”

But in asking the Supreme Court for a partial stay, lawyers for the state said the case is not a class action and that Hamburger Mary’s is the only plaintiff that “claims that the statute unconstitutionally deters it from presenting to children live drag shows that are not sexually explicit.”

“Even if such performances violated the statute, all Hamburger Mary’s needs to remedy its alleged injury is an injunction precluding the state from enforcing the statute against Hamburger Mary’s,” the state filing said. “Extending that relief to others not before the court did nothing to alleviate Hamburger Mary’s asserted injury and exceeded the district court’s remedial authority.”