After suffering a setback at the U.S. Supreme Court, attorneys for Gov. Ron DeSantis' administration on Friday told a federal appeals court that a law aimed at preventing children from attending drag shows is tailored to the state's "unquestioned interest in protecting children from exposure to obscenity."
The state, in a 73-page brief, argued that the 11th U.S. Circuit Court of Appeals should overturn a June ruling by U.S. District Judge Gregory Presnell that blocked enforcement of the law statewide. Presnell said the law, approved this spring by the Republican-led Legislature and DeSantis, violated First Amendment rights.
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Attorneys representing Department of Business and Professional Regulation Secretary Melanie Griffin, the named defendant in the case, disputed in the brief that the law violates the First Amendment and said it is narrowly focused on the ages of children.
“Because of this feature, the act does not unnecessarily deny or impede access of adults to communications that are constitutionally protected for them,” said the brief, filed by lawyers in Attorney General Ashley Moody’s office. “The act proscribes only the knowing exposure of a child to unprotected speech — speech that is obscene for children of that age. It is therefore entirely consistent with the First Amendment.”
The Orlando restaurant and bar Hamburger Mary’s filed the lawsuit in May, saying in court documents that it had run “family-friendly” drag shows for 15 years. Presnell ruled that the law is not “sufficiently narrowly tailored” to meet First Amendment standards and issued a preliminary injunction that applied to venues throughout the state.
While the state quickly appealed Presnell’s ruling to the Atlanta-based appeals court, the two sides battled for months about whether the injunction should be applied statewide while the legal fight continued.
Presnell and the appeals court refused a state request for a partial stay that would have only applied the injunction to Hamburger Mary’s and allowed enforcement of the law elsewhere. A divided U.S. Supreme Court on Nov. 16 declined to take up a request from the state for a partial stay.
The decisions about the requested partial stay, however, did not resolve the underlying legal issues in the appeal of Presnell’s ruling. The state’s filing Friday was an initial brief in the broader dispute.
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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 the 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 the brief Friday, the state’s lawyers raised a series of arguments, including emphasizing that the law would not affect the ability of venues to offer shows for adults.
“The act does not prevent the live performances from taking place and it does not prevent any adults from viewing them,” the brief said. “It is difficult to imagine how the state could have better crafted a statute to protect young children from the harm of witnessing an obscene live performance without intruding on the rights of adults and older children.”