Metro Weekly

Florida’s Drag Ban Remains Blocked

A federal appeals court refused to overrule lower court judge, who ordered state to stop enforcing drag ban.

Photo: Sandy Millar / Unsplash

A federal appeals court declined to overturn an order blocking Florida from attempting to enforce a law aimed at banning drag performances in public.

Last week, a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a lower court judge’s preliminary injunction stopping the law from being enforced until a trial is held to determine whether the law is unconstitutional, as the plaintiffs challenging the law claim, reports The Associated Press.

U.S. District Judge Gregory Presnell, of the Middle District of Florida, had issued the preliminary injunction blocking the Florida Department of Business and Professional Regulation — which, under Gov. Ron DeSantis’s administration, has aggressively sought to crack down on drag performances by threatening businesses that host them with the loss of their business or liquor licenses — from enforcing the law.

Proponents of the law claim it’s necessary to protect children from being exposed to so-called “adult live performances,” which are defined as anything depicting or simulating “nudity, sexual conduct, sexual excitement, or specific sexual activities…lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

Those backers of the law claim that drag is an inherently sexual and crude art form that is inappropriate for children to view because it may “sexualize” them at an early age or lead children to become “confused” about their sexual orientation or gender identity.

The law was challenged by Hamburger Mary’s restaurant in Orlando, which argued that it had lost revenue due to the law after customers stopped attending its “family-friendly” brunch drag shows on Sunday.

The owners cited the loss of business, arguing that some parents were spooked about what retaliatory actions Florida officials might take against the restaurant, and against parents who allow their children to attend such performances.

Technically, the law does not carry any penalty for parents who allow their children to see drag performances, but some Republican politicians, including Gov. DeSantis, had previously suggested that Florida’s child welfare agencies should investigate such parents for “child endangerment” and potentially even remove children from their parents’ custody.

Even though the “drag ban” contains no such provisions, misinformation about the bill’s content, fueled by online anti-LGBTQ activists, was rampant on social media.

Additionally, some customers — even those without children may have stayed away out of fear of protests by right-wing groups the Proud Boys or so-called “anti-grooming” groups, which have occurred throughout the country in recent years.

In some cases, demonstrators have allegedly threatened violence against both performers and customers of establishments hosting drag performances.

But Presnell found, in his July ruling, that the state already has obscenity laws on the books to protect children, and that the restrictions on “adult live performances” were specifically tailored to target drag shows, meaning that the law constitutes a content-based restriction of free speech and freedom of expression, which is illegal under the First Amendment.

Presnell additionally ruled that the law’s definition of what constitutes “obscene” are vaguely defined, and is thus subject to the whims or biases of regulators, rather than clearly-defined standards.

He also found that the law conflicts with Florida’s recently passed “Parents’ Bill of Rights” — which ostensibly allows parents the right to make decisions regarding the “moral or religious training” of their own children — by attempting to override parents’ decisions on whether to allow their children to attend “family-friendly” drag performances.

Following Presnell’s ruling, drag shows resumed at Hamburger Mary’s Orlando, with Sunday business returning to the level it was at prior to the drag ban’s passage. 

The Florida Department of Business and Professional Regulation appealed Presnell’s ruling, demanding that the 11th Circuit limit his injunction to apply only to Hamburger Mary’s Orlando, arguing that Presnell had overstepped his authority by blocking the state from enforcing the law in venues beyond Orlando.

The department argued that it should be allowed to take action against individuals — who can face misdemeanor charges under the law — or other venues, besides Hamburger Mary’s, “who may wish to expose children to live obscene performances in violation of the statute.”

But the majority on the appeals court panel rejected that argument, finding Presnell had not erred in issuing the injunction. 

Gary S. Israel, the attorney for Hamburger Mary’s Orlando, previously predicted that the 11th Circuit would deny the state’s request to overturn or amend the judge’s order.

At the time the preliminary injunction was issued, Israel told Metro Weekly that when the matter heads to trial, he believes the state of Florida will not be able to provide evidence to counter Presnell’s earlier finding that the drag ban likely infringes on the First Amendment rights of performers and business owners whose venues host drag shows.

“The indication from the judge during the hearing is that he was actually going to go further than we even intended,” Israel said, adding that Presnell appears to be leaning toward “finding this law to be unconstitutional.”

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