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Judge blocks 'drag ban' law

D'Arcy Drollinger, the country's first drag laureate, poses with the Pride flag outside San Francisco City Hall on June 2, 2023.
Chloe Veltman
D'Arcy Drollinger, the country's first drag laureate, poses with the Pride flag outside San Francisco City Hall on June 2, 2023.

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 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