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Hamburger Mary’s wins court victory against Ron DeSantis’ drag ban

A Hamburger Mary's restaurant sign Photo: Shutterstock

The restaurant chain Hamburger Mary’s, which features drag waitresses and family-friendly drag performances, has won a legal victory after convincing a federal judge to place a temporary injunction against Florida’s drag ban. The law will be blocked until a court case decides on the ban’s constitutionality.

The ban, signed by Florida Gov. Ron DeSantis (R) on May 17, allows the state Department of Business and Professional Regulation to revoke the business licenses of any venues that allow minors to see drag performances, even if their parents consent, as well as issue $5,000 and $10,000 fines against the business. Anyone who violates the law can be charged with a criminal misdemeanor.

Hamburger Mary’s sued DeSantis on May 23, saying that the law targeted the business’s First Amendment rights to free speech. In the lawsuit, the company said it had lost 20% of its reservations since announcing that minors could no longer dine at the restaurant in the presence of drag performers.

In his ruling, federal Judge Gregory Presnell pointed out that the law’s text specifically forbids children from seeing live performances featuring “lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts,” but the law neither defines what is considered “lewd” nor what constitutes a “live performance.”

“A live performance… could conceivably range from a sold-out burlesque show to a skit at a backyard family barbecue,” Presnell wrote. “What are the implications for cancer survivors with prosthetic genitals or breasts?”

As a result of this “vague and overbroad” language, Presnell added, Hamburger Mary’s and other businesses “cannot know with any confidence whether its shows will expose it to liability under the Act.”

“The state claims that this statute seeks to protect children generally from obscene live performances. However… Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers.”

The judge then cites the bill’s sponsor, state Rep. Randy Fine (R), who said that his bill would “protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.'” The judge also pointed out that any concern about the law protecting children “rings hollow” seeing as state law “permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian.”

This ruling marks the third recent loss for DeSantis’ anti-LGBTQ+ laws. Another federal judge recently issued two rulings against Florida’s ban on gender-affirming healthcare for transgender youth.

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