In his order, issued June 23, U.S. District Judge Gregory Presnell said the law’s restrictions on and definitions of “adult live performance” are “dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech.”
Florida lawyers claimed the law, SB 1438, will “protect children” by banning them from “adult live performance,” but Presnell shredded that argument in his 24-page opinion.
From his opening paragraph, Presnell, an 80-year-old Clinton appointee, called out Florida’s actions as an attempt “to suppress the speech of drag queen performers.”
Presnell’s preliminary injunction bars Florida’s Department of Business and Professional Regulation from implementing or enforcing the law as the case moves forward.
Presnell said that the law likely violates the First Amendment and is likely unconstitutionally vague and overbroad.
The ruling was the second major legal loss for Gov. Ron DeSantis last week, coming days after another judge struck down the state’s ban on Medicaid coverage of gender-affirming care.
Hamburger Mary’s Orlando owner John Paonessa has said the law was a threat to his business, even though events there were family friendly.
Hamburger Mary’s used to host family-friendly drag brunches on Sundays at its Orlando location, where children are allowed to attend, the suit says.
“There is no lewd activity, sexually explicit shows, disorderly conduct, public exposure, obscene exhibition or anything inappropriate for a child to see,” the lawsuit says.
After the law was signed, the Hamburger Mary’s Orlando told customers that children won’t be allowed to attend any of its drag shows, and as a result, 20% of its bookings were canceled for a May 21 show, as well as for future shows, according to the suit.
“They simply cannot take the chance that their business or liquor licenses would be suspended for hosting a drag show where children attend,” the lawsuit says, adding that the criminal penalties outlined by the law put individuals at risk of prosecution.
Those found in violation of the drag show ban law could face prosecution and thousands of dollars in fines and have their licenses revoked.
The legal team that represented Hamburger Mary’s Orlando was the same one that won a ruling against a drag ban in Tennessee earlier this month.
“We are extremely pleased with this first win,” attorney Melissa Stewart said in a statement. “This law is unconstitutionally vague, overbroad, and clearly targeted at drag performers. The judge’s order reflects that. This order will protect the First Amendment rights of not only our clients, but of the LGBTQIA community across Florida while we move forward with the next steps in this litigation.”
DeSantis this year has signed a slate of bills targeting LGBTQ+ people, and Florida agencies have also issued rules that restrict the rights of the LGBTQ+ community.
But at least one, so far, has failed in court.
U.S. District Judge Robert Hinkle, on June 21, struck down a Florida Agency for Health Care Administration rule banning Medicaid coverage for gender-affirming care for both young people and adults.
That ruling came weeks after he issued an injunction allowing minors already in treatment to continue receiving puberty blockers.
The drag show ban bill was filed by Florida Rep. Randy Fine, a Republican, after a drag queen story hour took place at a Pride event in his district.
While lawmakers who pushed the bill dismissed accusations the bill targeted drag, it’s already illegal in Florida to allow minors into strip shows and other live events with nudity and overtly sexual displays.
The new law applied to live performances that include nudity, sexual conduct, sexual excitement, lewd conduct, or lewd exposure of prosthetic or imitation genitals or breasts.
Presnell said the drag show ban conflicts with statutes guaranteeing parental discretion on actions involving their children, saying that’s ironic as DeSantis and Florida Republicans passed the slew of anti-LGBTQ+ laws by frequently citing “parents’ rights.”
The judge wrote that any argument of a compelling state interest didn’t apply.
“This concern rings hollow … when accompanied by the knowledge that Florida state law presently and independently … permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian,” he wrote.
On Wednesday, Florida Attorney General Ashley Moody filed a motion seeking a stay, which would allow the state to enforce the drag show ban except against Hamburger Mary’s Orlando.
If the stay is granted by Presnell, the drag show ban would remain in effect while the 11th Circuit Court of Appeals considers the case.
Presnell gave Hamburger Mary Orlando until July 10 to respond.