Metro Weekly

Judge Allows Drag Shows to Resume at Hamburger Mary’s

Hamburger Mary's Orlando received a respite after a federal judge blocked Florida from punishing the restaurant under its anti-drag law.

A drag show at Hamburger Mary’s Orlando – Photo: Hamburger Mary’s.

A Florida restaurant that has become known for its “family-friendly” drag shows on Sundays has received temporary relief, courtesy of a federal judge who blocked state authorities from seeking to enforce Florida’s ban on “adult live performances.”

Hamburger Mary’s, a popular fixture in the Orlando area, sued over the law, arguing that the ban violates the First Amendment because it is overly broad, vague — relying on undefined “prevailing standards” with respect to what is considered “suitable material or conduct” — and restricts speech and freedom of expression based on the identity of the speaker or performer.

Critics of the law, which was signed by Gov. Ron DeSantis in May, have previously argued that its definition of “adult live performances” appears to specifically target drag shows rather than all types of performances, or inappropriate material for minors that is disseminated through other mediums, such as movies, television, or the Internet.

The owners of Hamburger Mary’s also noted, in their initial complaint challenging the law, that they worried that state authorities would attempt to yank their business license, their liquor license, or impose costly fines on the restaurant, both due to widespread misconceptions over the type of drag performed during Hamburger Mary’s Sunday brunches, and due to a seeming overzealous desire, on the part of state regulatory officials, to punish all establishments hosting drag shows.

Most importantly, Hamburger Mary’s says the law — or rather, the intimidation of customers who are unsure about the specifics of the statewide “drag ban” — ended up hurting its business and costing the restaurant revenue.

To avoid running afoul of the law, the restaurant informed customers that children would no longer be allowed at the restaurant on Sundays.

“As we’ve alleged in our petition, once the law was passed, Hamburger Mary’s bookings for the family-friendly drag shows on Sunday dropped by 20%,” Gary S. Israel, the attorney for Hamburger Mary’s Orlando, told Metro Weekly in an interview.

“People were so afraid to bring their children for fear of what could happen,” said Israel, alluding to past statements by Republican politicians, including DeSantis, advocating that Florida’s child welfare agencies should investigate parents for “child endangerment” if they allow their children to attend drag shows. The current law contains no such provision, but rumors misrepresenting the bill’s content have spread wide and far online.

Additionally, some customers may have feared retribution from non-government actors, as several drag shows have been protested by groups like the Proud Boys or so-called “anti-grooming” groups, with some demonstrators allegedly threatening violence against both performers and customers of establishments hosting drag performances, prompting some establishments, especially nightclubs already reeling from the Pulse and Club Q shootings in recent years, to beef up security

Israel noted that U.S. District Judge Gregory Presnell, of the Middle District of Florida, cited the loss of business suffered by Hamburger Mary’s and issued an injunction on June 30 to prohibit state officials from seeking to enforce the law against the Orlando restaurant.

In his ruling, Presnell, an appointee of former President Bill Clinton, found that while some people may deem a drag performer reading a children’s book to a minor during a performance to be inappropriate, it doesn’t necessarily constitute an “obscene” performance. He said that current obscenity laws already provide the state with “the necessary authority to protect children from any constitutionally unprotected obscene exhibitions or shows.”

Presnell also appeared to agree with arguments put forth by Hamburger Mary’s that it is likely to be prosecuted under the law, given past actions by the Florida Department of Business and Professional Regulation to strip venues in Miami and Orlando of their liquor licenses for playing host to drag performances. According to the online newsletter Popular Information, the state lodged complaints against the venues, but appeared to have exaggerated or misrepresented facts from reports submitted by undercover state agents in attendance at the shows.

“Plaintiff, informed by the vague statutory language and Defendant’s enforcement activity against the Plaza Live, has been forced to chill its regular practice of opening many of its performances to all ages — at an economic loss,” Presnell wrote. “Coupled with statements by lawmakers, including a statement made by one of the Act’s sponsors that the Act was designed to target drag shows, Plaintiff’s fear of prosecution based on the Act’s alleged vague construction is not unfounded. At worst, Plaintiff certainly claims that ‘a prosecution is remotely possible’ if it does not self-censor.”

Presnell further found that the law is not narrowly-tailored enough to avoid infringing on free speech rights of performers and establishments hosting drag performances. He also said the law conflicts with the Republican-backed “Parents’ Bill of Rights” and other laws recently passed by Florida lawmakers, which grant parents the right to make decisions regarding the “moral or religious training” of minor children.

“[The state] 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 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 anti-drag law].”

Israel told Metro Weekly his client was “thrilled” by Presnell’s ruling, even though it was expected that the law would be blocked.

“The indication from the the judge during the hearing is that he was actually going to go further than we even intended,” Israel said. “He brought up the recently passed parental rights law in the state of Florida and asked the attorney general, how does this jive with the law that your own government passed giving the rights to parents who decide? Why shouldn’t they be able to make these decisions? And the judge included that in his in his injunction, which went further than we were even pleading in this case. So he is squarely on the side of finding this law to be unconstitutional.”

Jeremy Redfern, DeSantis’s press secretary, said in a statement that Presnell’s opinion “is dead wrong” and that the state “look[s] forward forward to prevailing on appeal.”

Israel told Metro Weekly he fully expects the state to appeal by asking Presnell to stay his ruling, or prevent the injunction from taking effect — a request he fully expects the judge to reject. The state can then appeal to the 11th U.S. Circuit Court of Appeals asking them to block the injunction and allow the state to enforce the law against Hamburger Mary’s.

“I have very high hopes that the 11th Circuit is going to deny the the request to stay the judge’s order, because all the judge has done is restore the status quo while this case is litigated. Then the 11th Circuit will have its decision, probably in six or seven months, on whether it finds that judge’s ruling was sound or not. It is only after that, that the matter will come back to the Middle District of Florida and we will have our trial on the case,” Israel said. 

Israel also noted that Presnell has already found that Hamburger Mary’s is likely to succeed in finding the law infringes on free speech, adding that it’s “unlikely the state is going to be able to come up with anything to counter us the trial, because they would have argued it already and brought it forth at the hearing on the on the temporary injunction.”

“The judge has found in his preliminary ruling, and it is in fact, the part of our case that we were arguing, that there are already laws on the books in Florida protecting children,” he added. “This law does not do anything additional to protect children. This law only addresses drag queens. Even though they don’t use the word ‘drag queens,’ that’s what this law was intended to address. And the judge figured that out in the first paragraph, saying this is clearly what the state’s intention is here.”

Should Florida attempt to enforce the law against Hamburger Mary’s by trying to yank the restaurant’s business or liquor licenses while the case is being litigated, Israel said the restaurant would file for an order of contempt against the state, with the federal court likely issuing such an order.

Israel noted that the Sunday after the federal court issued its injunction, the restaurant was as busy as ever, with several patrons bringing their children in for food while the drag queens performed.

“That was the first Sunday that children were allowed since the law passed,” Israel said. “I was there with my two children and one of my grandchildren. My children are 7 and 17 [years old], and my grandchild is 3 [years old]. And I can tell you, you have not seen anything cuter than watching a three-year-old tip a drag queen.”

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