Michael Moline, Florida Phoenix
A federal judge has blocked enforcement of a new state law designed to protect children from drag queens, ruling that its attempted regulation of “adult live performances” is unconstitutionally vague.
U.S. District Judge Gregory Presnell issued a 24-page ruling Friday enjoining Florida Department of Business and Professional Regulation chief Melanie Griffin from moving against businesses like Hamburger Mary’s, a restaurant and bar that hosts drag shows including “family friendly” performances to which children are invited, which filed the lawsuit.
The recently enacted Section 827.11 of Florida Statutes (SB 1438, the “Protection of Children Act”) threatens fines, loss of operating licenses, and criminal penalties against venues that expose any “child” to “lewd” performances.
That’s even if their parents approved or the venue doesn’t know the attendee’s age or that any children are present, Presnell wrote. It mentions exposure to prosthetic genitals and breasts. The state argued it was trying to protect children.
But the statute doesn’t fully define most of what it seeks to prohibit, Presnell concluded. And there are other laws to shield kids against obscenity, he added.
“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 Section 827.11,” the judge wrote.
“The harm to Plaintiff clearly outweighs any purported evils not covered by Florida law and a preliminary injunction would not be adverse to the public interest,” he concluded.
The original legal complaint, filed by Hamburger Mary’s parent company, named Gov. Ron DeSantis and the state of Florida in addition to Griffin, but they were dropped from the case to avoid infringing on the state’s sovereign immunity.
The law created a chill throughout Florida’s LGBTQ+ community, leaving some to cancel traditional Gay Pride events.
Similarly, Hamburger Mary’s argued it had to engage in self-censorship and consequently was losing business despite 15 years of trouble-free performances.
The judge noted that Griffin’s department sought sanctions against another Orlando business, the Plaza Live, after it staged “A Drag Queen Christmas” last December, alleging the show involved “the sexualization of children.” Her agency has continued to pursue its investigation even after undercover state agents reported “no lewd acts such as exposure of genital organs.”
The law runs directly counter to the Parental Bill of Rights that DeSantis pushed through the Legislature, Presnell wrote. “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,” the judge noted.
“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 [obscenity laws],” Presnell wrote.
“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 Section 827.11 and renders Plaintiff’s claim likely to succeed on the merits,” he declared.
Florida Democratic Party Chair Nikki Fried welcomed the ruling.
“Florida’s drag queens are here to stay. Ron DeSantis is losing his unconstitutional culture war on LGBTQ+ Floridians — this is the third law that the courts have rejected in the last three weeks and another embarrassing ‘L’ on his record,” she said in a written statement.
“I’ll be celebrating these wins at the St. Pete Pride Parade tomorrow, standing proudly alongside the LGBTQ+ community. I’d invite Ron to join me, but he’s probably too busy running for president in South Carolina.”
“This is another legal win for the people of Florida and for the First Amendment! I am thrilled with this outcome and it’s especially meaningful for a decision to be released during Pride Month, too,” said state House Democrat Anna Eskamani of Orlando.
“The United States should not be hindering free speech or erasing communities. In deep contrast, we should respect different cultural identities and embrace freedom of expression. Here’s to many more legal wins — here’s to the fight for equality,” Eskamani said in a written statement.
This story has been updated to include reaction.
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