A federal appeals court on upheld a preliminary injunction against a 2023 Florida law aimed at keeping children out of drag shows.
In a 2-1 decision May 13, a panel of the 11th U.S. Circuit Court of Appeals backed Hamburger Mary’s, a drag-themed restaurant chain, in a First Amendment challenge to the law, , the News Service of Florida reported. The state was appealing a 2023 injunction from U.S. District Judge Gregory Presnell.
The 81-page majority opinion, written by Judge Robin Rosenbaum and joined by Judge Nancy Abudu, called the law “substantially overbroad” and called for clarity in any laws seeking to label speech obscene.
“An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law,” Rosenbaum wrote. “But the First Amendment empowers speakers instead. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”
Judge Gerald Tjoflat wrote a 45-page dissent saying the case should have been sent to the Florida Supreme Court for help with interpretation rather than striking it down “wholesale.”
Drag is an art form in which a person dresses in elaborate clothing and makeup designed to present an exaggerated, over-the-top version of a man or woman, often of the opposite sex.
As of Tuesday afternoon, Gov Ron DeSantis, currently in Ohio to promote immigration policies and term limits for members of Congress, has not commented on the ruling.
What is Florida’s anti-drag show law?
SB 1438, dubbed the Protection of Children bill, does not include the words “drag show” and does not technically make such shows illegal.
Instead, the bill blocks venues from knowingly admitting children to “adult live performances,” which it defines 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.”
But it came out amid a flurry of anti-LGBTQ legislation in the Florida Legislature and right after the DeSantis administration attempted to strip liquor licenses from drag event venues in South and Central Florida that admitted children, even as state agents reported no lewd conduct at one of the events Gov. Ron DeSantis criticized.
Under the law, venues would risk fines, suspension or loss of license and the possibility of an additional $5,000 fine for the first violation and a $10,000 fine for the second and subsequent violations. Knowingly allowing a child to attend an adult performance would be a first-degree misdemeanor.
A last-minute amendment also blocked government entities from issuing licenses for such venues.
Critics accused the bill of being a vaguely worded attack on LGBTQ+ culture that would severely limit public Pride celebrations and parades and potentially even beauty contests and theatrical performances. Several Florida cities saw their Pride events canceled that year for fear of legal issues and heavy fines.
In Tuesday’s majority opinion, Rosenbaum and Abudu said the term “lewd conduct” was overbroad and the act’s prohibition would “reach speech that is constitutionally protected, even as to minors.”
Elsewhere, some Pride event organizers have been fighting back. On May 12, a federal judge ruled in favor of Naples Pride, blocking the city of Naples’ attempt to restrict a public drag performance scheduled for the group’s Pride Fest in June.
Hamburger Mary’s reopening in Kissimmee
A year after filing a lawsuit against the state, the Orlando Hamburger Mary’s announced it was moving from its 16-year location downtown and moving to a location in Kissimmee.
The new spot will be on Highway 192 at the old Capone’s Dinner Theater, which is still being remodeled, according to their Facebook page. Meanwhile, performers are appearing at events and shows at other venues in the area.
Jim Saunders, The News Service of Florida, contributed to this story.
This article originally appeared on Tallahassee Democrat: Appeals court sides with Hamburger Mary’s against Florida’s ‘drag show’ law
Reporting by C. A. Bridges, USA TODAY NETWORK – Florida / Tallahassee Democrat
USA TODAY Network via Reuters Connect
