The Supreme Court has refused to block a temporary injunction issued against Florida’s drag ban in a lawsuit brought by the drag-themed restaurant chain Hamburger Mary’s.
In May, Florida Gov. Ron DeSantis (R) signed a bill allowing 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.
Gov. Ron DeSantis is widely expected to sign the recently passed bill into law.
In late June, federal Judge Gregory Presnell issued the injunction after the restaurant chain Hamburger Mary’s sued Florida over the law, saying it harmed its business and violated its constitutional free speech rights. State lawyers asked the judge to limit his injunction to just Hamburger Mary’s so that they would at least be allowed to punish other businesses violating the drag ban, but the judge refused.
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Florida tried to appeal Presnell’s ruling to the U.S. Court of Appeals for the Eleventh Circuit, but they refused to issue a stay to stop the injunction. The state then tried to get the Supreme Court to stop the injunction, but they refused. Justices Brett Kavanaugh and Amy Coney Barrett joined the liberal justices in refusing to grant a stay to stop the injunction, while Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch said that they would have granted a stay.
A DeSantis administration spokesperson said that DeSantis was “disappointed” with the decision but believes that the law will be upheld on its merits.
Presnell’s ruling said that while some people might find drag inappropriate, the art form doesn’t meet the legal definition of obscenity and is therefore protected by the First Amendment.
He also 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.” He 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.”
In early June, another federal judge overturned Tennessee’s drag ban, saying that the drag ban’s purpose was to violate “constitutionally-protected speech.”