Florida calls on Supreme Court to enforce law targeting drag shows

WASHINGTON (CN) — Florida appealed to the Supreme Court on Tuesday in an effort to enforce restrictions on drag shows throughout the state.

The state wants the justices to limit a lower court order blocking the Protection of Children Act, which bans children from “adult live performances.” A federal judge found the law was aimed at drag shows, barring it from taking effect. 

​​”As long as the district court’s preliminary injunction remains in place, Florida is powerless to enforce a law its elected representatives have enacted for the protection of its children,” Henry Whitaker, Florida’s solicitor general, wrote. 

Republican Governor and presidential candidate Ron DeSantis signed the bill in May along with others that targeted the LGBTQ+ community. The law prevents minors from being present at performances that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities.” According to the bill’s sponsor, state Representative Randy Fine, the law protected children from drag queen story times — events he characterized as “gateway propaganda.” 

A Florida restaurant, Hamburger Mary’s, claims the Protection of Children Act is unconstitutional in its lawsuit against the state for free speech violations. For over a decade, the establishment has hosted drag-centric performances, comedy sketches, bingo, trivia, and dancing for all ages. As a result of the new law, Hamburger Mary’s barred children from drag shows fearing the restaurant would lose its liquor license if found in violation of the new regulations. 

“Immediately, 20% of their bookings canceled for the May 21, 2023 show and for future bookings,” the restaurant wrote in its suit.

“They simply cannot take the chance that their business or liquor licenses would be suspended for hosting a drag show where children attend. In addition, the criminal penalties of the law put individuals at risk of prosecution because of the content of their speech.” 

Hamburger Mary’s said its concerns were not unwarranted, citing the state’s actions against other drag establishments. In 2022, a hotel that hosted “A Drag Queen Christmas” was accused of violating public nuisance, lewd activity, and disorderly conduct laws. A restaurant that hosted a drag queen brunch also faced similar penalties, facing the loss of its liquor license because it did not provide notice of the “sexually explicit nature of the performance.” 

In June, U.S. District Judge Gregory Presnell said the Protection of Children Act was likely unconstitutional. The Clinton appointee noted that Florida has other laws aimed at protecting children so the law’s purpose appeared to target the speech of drag queen performers. Presnell also noted that the law was likely too broad and vague. 

“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 cases like Miller,” Presnell wrote.

“Moreover, the Act’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?” 

Florida says it was Presnell’s ruling that was too broad, and asks the Supreme Court for a partial stay. Presnell’s injunction bars the law from being enforced anywhere in Florida. The state says the breadth of the relief was unnecessary. 

“Florida strongly disagrees with that conclusion and has appealed the injunction,” Whitaker wrote. “But Florida did not seek to stay that injunction below as it applies to the sole plaintiff in this case, and it does not here — in part because, in Florida’s view, the conduct plaintiff is suing to protect does not actually violate the statute. Instead, Florida now applies for a partial stay of the injunction to the extent it sweeps beyond the plaintiff and enjoins the statute universally.” 

According to Florida, the injunction exceeded the authority of the lower court. 

“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,” Whitaker wrote. “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.” 

The emergency application was submitted to Justice Clarence Thomas, who presides over appeals from the 11th Circuit. 

Follow @KelseyReichmann

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