Ron DeSantis humiliated as appeals court rules against his drag ban

The administration of Florida Gov. Ron DeSantis suffered a humiliating defeat on Wednesday when the 11th Circuit Court of Appeals voted 2-1 to refuse his request to let his state’s infamous drag ban go into effect while a case against it proceeds. As a result, drag remains legal in the state.

The drag-themed restaurant chain Hamburger Mary’s challenged the law in court, saying that it harmed their business and violated their free speech rights. In late July, District Judge Gregory Presnell agreed. He placed a temporary statewide injunction against the ban and then allowed his injunction to remain in place even though DeSantis’ lawyers argued that doing so would cause Florida “irreparable harm.”

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“There’s not a single book that’s been banned in the State of Florida.”

State officials appealed Presnell’s decision, asking for a partial injunction so that the law could go into effect. They argued that the injunction “sweeps beyond [Hamburger Mary’s] to nonparties who may wish to expose children to live obscene performances in violation of the statute,” Newsweek reported.

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The officials’ reasoning was dishonest, however, since Florida already has laws in place to protect children from viewing live obscene performances. Presnell pointed this out in his decision, adding that Florida’s children can regularly view inappropriate sexual and violent content by attending R-rated movies with adults.

In its Wednesday decision, the appeals court wrote, “The potential harms from reversing the injunction outweigh those of leaving it in place by mistake.” The court didn’t decide on the constitutionality of the law, only on the injunction itself.

In its decision, the court wrote, “There is a potential for extraordinary harm and a serious chill upon protected speech” by allowing the law to go into effect while the restaurant’s case proceeds through the courts.

Pointing to legal precedents, the court wrote that in “other cases where a law has been found to be overbroad in violation of the First Amendment, we have affirmed injunctions preventing enforcement of a law or ordinance against nonparties as well as parties.”

“No prosecutions have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity laws already on the books,” the judges wrote.

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 original late June ruling, Presnell called the drag ban “vague and overbroad,” pointing out that the law’s text bans any “lewd” “live performance” without defining what either term means. As a result, the judge said, “A live performance… could conceivably range from a sold-out burlesque show to a skit at a backyard family barbecue,” adding that businesses “cannot know with any confidence whether its shows will expose it to liability under the Act.”

Courts have blocked similar drag bans from going into effect in Tennessee and Texas.