“Irreparable Harm on Florida and Its Children”: DeSantis’ Anti-Drag Show Legislation Rejected by Supreme Court

Cynthia PaulNov 30, 2023

Minute Read

Admitting children to shows that the state deems excessively sexually explicit is illegal.

Unlawful Restrictions on Free Speech Imposed

Editorial credit: Christopher Penler/Shutterstock.

On Thursday, the U.S. Supreme Court denied Florida’s request to uphold a state statute that prohibits drag shows, arguing that the acts violate free expression rights.

Majority Doesn’t Explain Its Reasoning

After lower courts banned the legislation statewide, the court, divided 6-3 and with three conservatives dissenting, denied an emergency plea from Florida officials. The majority did not provide a justification.

DeSantis Signs Bill to Restrict Transgender Health

This year, the Florida Legislature enacted a provision that is largely perceived as a component of a conservative assault against LGBTQ rights. Signing the measure into law was Florida Governor Ron DeSantis, a regular contributor to culture war topics and a candidate for the Republican presidential nomination. This year, DeSantis also ratified a bill that limits access to healthcare for transgender individuals.

Adult Live Performance

The Protection of Children Act, as it is officially known, makes it illegal to bring a kid to an “adult live performance” that contains explicit sexual content as determined by the state.

Lewd Conduct

Three justices, Neil Gorsuch, Samuel Alito, and Clarence Thomas, would have approved the state’s request. The statute was invalidated in part by a district court judge on the grounds of the First Amendment because it was phrased too ambiguously and failed to define important phrases like “lewd conduct.” That decision was upheld by the 11th U.S. Circuit Court of Appeals, located in Atlanta.

Family-Friendly Drag Shows

Editorial credit: The Image Party / Shutterstock.

The court challenge was filed by Hamburger Mary’s, an Orlando restaurant and bar that bills its drag acts as family-friendly.

Overbreadth and Vagueness

The concerts “are not harmful to minors but likely still run afoul of the act due to its overbreadth and vagueness,” the restaurant’s attorneys stated in court documents.

Law Enforced Statewide

The state was barred from executing the statute statewide as well as against Hamburger Mary’s by the district court. The state contended that the judge lacked the power to make such a decision. The state requested the judges to restrict the injunction such that it only applied to the eatery in its Supreme Court application.

Not an Issue the Court Would Normally Hear

Editorial credit: Cory Seamer / Shutterstock.

Another conservative, Justice Brett Kavanaugh, provided a brief explanation in his opinion letter for his no-vote against the state, stating that the court would not ordinarily examine the specific issue the state was bringing up. Amy Coney Barrett, a conservative Justice, mostly agreed with Brett Kavanaugh’s viewpoint.

This Case Is Therefore an Imperfect Vehicle

“This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation,” he stated.

Protecting “Our Children by Ending the Gateway Propaganda to This Evil”

The bill’s proponent, cited in the judgment, stated that the legislation would safeguard “our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’” The liquor licenses of a Miami hotel and an Orlando performance venue were revoked by Florida’s Department of Professional and Business Regulation prior to the order’s issuance for staging drag performances at which minors may have been present.

Minors to Only Attend R-Rated Films With Guardian

U.S. District Judge Gregory A. Presnell pointed out that under Florida law, any youngster who is accompanied by a parent or guardian is allowed to see an R-rated picture in a theater. These are movies that, according to Presnell, “routinely convey content at least as objectionable” as the ones that are now protected by the new legislation.

Existing Obscenity Laws Already Protect Children

Presnell said that because the new legislation gives the state authority over what performances kids may attend rather than letting parents make that decision, it conflicts with another DeSantis objective, the “Parents’ Bill of Rights.” Children are already shielded from “any constitutionally unprotected obscene exhibitions or shows” by the obscenity statutes that are now in place, he continued.

Law to Be Enforced Against Parties Other Than Hamburger Mary’s

Judge Andrew Brasher dissented, stating that while the case was pending, he would have let the state continue enforcing the statute against parties other than Hamburger Mary’s.

A Single Plaintiff That Operates a Single Brick-And-Mortar Restaurant

Brasher stated, “We have a single plaintiff who runs a single brick-and-mortar restaurant in a single city.” “An injunction addressed to everyone in Miami, Tallahassee, Jacksonville, Tampa, and everywhere else in Florida provides no benefit to that plaintiff and solves no administrability concern, but it nonetheless imposes significant burdens” on state officials.

Blocking the Measure “Inflicts Irreparable Harm on Florida and Its Children”

While the case is still pending, Florida Attorney General Ashley Moody (R) requested that the Supreme Court step in and restrict the injunction to just apply to Hamburger Mary’s. “Inflicts irreparable harm on Florida and its children by purporting to erase from Florida’s statute books a law designed to prevent the exposure of children to sexually explicit live performances,” the woman said in a court filing opposing the proposal in its entirety.

Restaurant’s Shows Are “Not Harmful to Minors”

Donald A. Donati, the restaurant’s lawyer, responded by pleading with the Supreme Court to keep obstructing the state’s legal enforcement. He claimed in a court document that the restaurant’s shows are “not harmful to minors,” pointing out that parents and grandparents frequently take their kids to the concerts. However, the owners claim that due to the law’s ambiguous and expansive wording, they are worried about breaking it and about losing business if age limitations are mandated.

The State “Will Suffer No Irreparable Harm by Maintaining the Status Quo”

Florida “will suffer no irreparable harm by maintaining the status quo for the duration of this litigation,” according to Donati, who noted that the state already has constitutional rules in place prohibiting children from seeing sexually explicit materials.