Gov. Ron DeSantis wants the Supreme Court to unfreeze a law that penalizes businesses and venues if they permit minors to witness “lewd” events such as adult drag shows.
The U.S. Court of Appeals for the 11th Circuit earlier this month upheld 2-1 a lower federal court decision that Florida cannot enforce the law known as the Protection of Children Act, which aims to “fine, suspend, or revoke” the license of any business that allows a minor to view “an adult live performance.” Florida Attorney General Ashley Moody, a Republican, is now asking the high court to narrow the ruling’s scope so officials may enforce the law.
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Litigation against the measure began when Hamburger Mary’s, an Orlando-based restaurant and bar that hosts drag shows, sued over the legislation in May, just days after DeSantis signed the bill into law.
U.S. District Judge Gregory Presnell blocked Florida from enforcing the law in June, prompting the appeal to the 11th Circuit. Presnell held that the law is “unconstitutionally vague and overbroad” and “creates an unnecessary risk of chilling free speech.”
“Hamburger Mary’s has not alleged, much less proven, that application of the Protection of Children Act to others in the State of Florida will cause actual or imminent injury to Hamburger Mary’s itself. It was a serious error for the district court nonetheless to enjoin the statute as it may apply to the rest of the world,” the state wrote in court filings.
Moody is asking the Supreme Court for a partial stay of the law for nonparties while litigation plays out in lower courts. The petition goes to Justice Clarence Thomas, a conservative jurist who handles emergency requests arising from the 11th Circuit. He could act alone on the request or refer it to the full court for consideration.
“As long as the district court’s preliminary injunction remains in place, Florida is powerless to enforce a law its elected representatives have enacted for the protection of its children,” Moody’s filing said.
Florida is just one of several Republican-led states to pass a law tailored to drag performances, though the language of the measure does not specifically mention such shows. Similar laws passed in states including Texas, Tennessee, and Montana have suffered from legal pitfalls.
The Protection of Children Act makes it a misdemeanor to allow a child into an “adult live performance,” defined in part as “lewd conduct” or “lewd exposure of prosthetic or imitation genitals or breasts.” Businesses also face the prospect of having their liquor licenses suspended or revoked.
DeSantis is seeking to win the Republican primary and take on President Joe Biden in the 2024 election and has galvanized his base as a staunch supporter of traditional family values, arguing that all-ages venues shouldn’t host drag shows without any stopgaps to prevent children from witnessing such performances.
“Of course, it’s constitutional to prevent the sexualization of children by limiting access to adult live performances,” Jeremy Redfern, DeSantis’s press secretary, said in June after the district court’s injunction against the law.
The dissenting judge at the 11th Circuit, Judge Andrew Brasher, agreed with Moody that the injunction should only apply to Hamburger Mary’s, not the whole state.
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“The appellant’s motion raises the following question: Can a district court unnecessarily extend an injunction to nonparties when an individual plaintiff’s injury can be completely redressed by party-specific relief?” Brasher wrote. “The answer under our precedents is an emphatic ‘no.’”
The Supreme Court requested a response from Hamburger Mary’s counsel by Nov. 2 at 5 p.m.
