Bigots Handed Another Loss As Federal Court Blocks Yet Another Stupid Anti-Drag Show Law

Free Speech

from the always-love-seeing-assholes-lose dept

Lots of states are pitching, passing, or enacting bills effectively banning drag shows. Piggybacking on existing regulations governing adult entertainment, hateful people are seeking to punish people who don’t happily abide by the “there are two genders” social construct.

Fortunately, these people are losing. A federal court recently dumped Utah’s attempt to punish drag performers for the crime of performing drag shows. Although legislators were careful to omit any anti-drag wording from the bill, the legislative sessions involved in the passage of the law clearly showed anti-drag performer animus was the propelling factor in the law’s creation and presumptive enforcement.

Florida is filled to the brim with unconstitutional laws, thanks to the asshat running the joint. Governor Ron DeSantis has presidential aspirations. While waiting to see if the GOP will give him the nod, DeSantis has been playing to the extremely hateful base ex-president Donald Trump openly courted. The laws he has encouraged and passed make the First Amendment subservient to whatever punishment DeSantis wants to inflict on his enemies.

That hasn’t worked well for DeSantis or the state he unfortunately presides over. His war on everything that might not appeal to the whitest, straightest, straight-ticket-votingest part of the Republican voting block has suffered loss after loss following the constitutional challenges these laws inevitably provoke.

And here’s yet another tick mark in the DeSantis/Republican GOP loss column, as David Kihara reports for Politico:

A federal judge in central Florida on Friday temporarily blocked the state from enforcing a new law banning minors from attending drag shows.

The judge, Gregory Presnell, was acting on a request by the restaurant chain Hamburger Mary’s, which sued Florida last month claiming that the law was overly broad and put a chilling effect on the right to free speech under the First Amendment.

As the article notes, it’s only a temporary injunction. But it will likely become permanent if the state legislature refuses to amend the law to the court’s satisfaction. And to do that, it will likely have to alter the law enough that it will be impossible for the government to go after drag show performers or the businesses that host their performances.

The opening paragraph of the decision [PDF] make it pretty clear the law is more than likely permanently unconstitutional, at least as it exists now.

This case addresses the constitutionality of Florida Statute § 827.11. The state claims that this statute seeks to protect children generally from obscene live performances. However, as explained infra, Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers. In the words of the bill’s sponsor in the House, State Representative Randy Fine: “…HB 1423…will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’ ”

It’s not just hypothetical harms. There’s another business hosting drag shows that’s already facing a threat from this new law. Orlando’s Plaza Live hosted a “Drag Queen Christmas Show” late last year. Since then, it has faced threats from Secretary of Department of Business and Professional Regulation (DBPR) Melanie Griffin, who has sent letters claiming the show violated the new law and suggested the state will revoke the venue’s liquor license. These letters were sent despite the state’s undercover officers attending the show and finding nothing that actually violated the law.

The Dec. 28 performance featured campy skits like “Screwdolph the Red-Nippled Man Deer” and shimmying, bare-chested men who wouldn’t have been out of place at a Madonna concert. Also a hip thrust or two, similar to what is sometimes indulged in by NFL players after a touchdown. All of it was dutifully recorded by the undercover agents on state-issued iPhones.

But while the agents took photos of three minors at the Orlando drag show — who appeared to be accompanied by adults — they acknowledged that nothing indecent had happened on stage, according to an incident report obtained exclusively by the Miami Herald.

“Besides some of the outfits being provocative (bikinis and short shorts), agents did not witness any lewd acts such as exposure of genital organs,” the brief report stated. “The performers did not have any physical contact while performing to the rhythm of the music with any patrons.”

Even when nothing was criminal under the law, the DBPR continued to insist Plaza Live would be punished. In light of these facts, it’s easy for the plaintiff in this case — Hamburger Mary’s — to show it would too be harmed if the law continued to remain in effect.

Given that, and given the specifics of the anti-drag law, it’s extremely easy for the court to arrive at the conclusion that the state is trying to stifle a very specific form of speech, without showing any truly (and legally) compelling reason for doing so.

On top of that, it forecloses affirmative defenses for those charged under the Act, which means that even parents who consent to their children’s viewing of these shows cannot prevent the state from going after these venues and their performers.

The court says there’s plenty wrong with the law, starting with the preemptive removal of affirmative defenses.

The Act does not allow for the exercise of parental discretion, stating plainly that “[a] person may not knowingly admit a child to an adult live performance,” explicitly foreclosing any defense based on a “bona fide belief of a child’s consent.“

Second, the statute in Ginsberg only applied to commercial transactions, as opposed to the apparent universal application of § 827.11 to anyone, anywhere— the statute does not define a “live performance,” which could conceivably range from a sold-out burlesque show to a skit at a backyard family barbecue.

Third, and arguably most importantly, the Act here does not define several important terms: “live performance;” “child;” “lewd conduct;” and “lewd exposure of prosthetic or imitation genitals or breasts.” See Reno, 521 U.S. at 865 (distinguishing Ginsberg from a statute which included, without definition, the term “indecent”). These ambiguities, especially those pertaining to “lewd” conduct and exposure of prosthetics, represent a material departure from the established obscenity outline set forth in Miller. 43 U.S. at 24; see also, e.g., Am. Booksellers v. Webb, 919 F.2d 1493, 1496, 1513 (11th Cir. 1990).

Not only that, but this law collides with another law crafted by this same legislature as a means of preventing their kids from being subjected to “woke” thinking by educators. Ah, the incredible irony:

Similarly indicative of the Florida Legislature’s failure to narrowly tailor § 827.11 is its inevitable clash with the Florida “Parents’ Bill of Rights” and other laws. See Fla. Stat. § 1014 (2023). In pertinent part, Fla. Stat. § 1014 states that: “All parental rights are reserved to the parent of a minor child in this state…including…[t]he right to direct the upbringing and the moral or religious training of his or her minor child.” Id. § 1014.04(1)(b). This comports with other laws in Florida, such as § 847.013, which governs the exposure of minors to “harmful motion pictures, exhibitions, shows, presentations, or representations.” (emphasis added). That law prohibits the kind of obscene material described in Miller and, indeed, the Act here, with the exception that it does not incorporate ambiguities like “lewd conduct” or “lewd exposure of prosthetic or imitation genitals or breasts.” Importantly, however, that law does include a limiting provision which allows for a minor accompanied by his or her parents to attend any such exhibitions, regardless of the minor’s age.

The law is also vague, which means it could be read to target people who aren’t even the presumed target of a statute written for the (admittedly — by certain legislators) sole reason of eradicating drag performances.

A fully clothed drag queen with cleavage-displaying prosthetic breasts reading an age appropriate story to children may be adjudged “wicked”—and thus “lewd”—by some, but such a scenario would not constitute the kind of obscene conduct prohibited by the statutes in cases like Miller. Moreover, the Act’s focus on “prosthetic or imitation genitals or breasts” raises a host of other concerns not simply answered—what are the implications for cancer survivors with prosthetic genitals or breasts? It is this vague language—dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech—which distinguishes § 827.11 and renders Plaintiff’s claim likely to succeed on the merits.

The law is bad, badly written, and doesn’t even address the “problem” legislators and the governor claim it does.

Defendant professes that a statewide preliminary injunction would “harm the public by exposing children to ‘adult live performances.’ ” 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. See Fla. Stat. § 847.013(3)(c). Such R-Rated films routinely convey content at least as objectionable as that covered by § 827.11.

That’s the supposed justification. On the other side, there are “fifteen years of incident-free, harmless drag shows” performed at Hamburger Mary’s by drag artists. Why is it only now that the Florida government starts caring about the children so much it can’t even be bothered to concoct legislation that might pass a cursory constitutional review?

We all know the answer: it’s because the bigots are running the shitshow and just want to punish all the things they hate. And they’re getting away with it. They may not be able to keep their stupid laws, but they’re letting every resident with a heart full of hatred for others to know they’re being fully represented by their elected officials.

Filed Under: 1st amendment, anti-drag, drag, florida, ron desantis