A federal judge dealt Florida governor Ron DeSantis’s “war on woke’” a setback on Friday. U.S. district judge Gregory A. Presnell blocked the DeSantis administration from enforcing its new law protecting minors from exposure to drag shows.
Presnell also denied a motion by Attorney General Ashley Moody’s office to dismiss a lawsuit by HM Florida-ORL., LLC, and granted the company’s motion for an injunction against the law.
“We strongly disagree with the order and plan to appeal,” Moody’s spokeswoman Kylie Mason said in an email to The Epoch Times.
According to the June 23 court order, the company operates Hamburger Mary’s Restaurant and Bar in Orlando. “Plaintiff frequently presents drag show performances, comedy sketches and dancing, including ‘family friendly’ drag performances on Sundays where children are invited to attend,” Presnell states in the court order.
DeSantis, on May 17, 2023, signed into law Senate Bill 1438, according to the judge’s order. It amended three existing laws and created a new one prohibiting anyone from knowingly admitting a child to an adult live performance.
It authorized the Florida Department of Business and Professional Regulation (DBPR) to fine offenders, such as restaurants or hotels, and to revoke or suspend their operating or liquor licenses.
Hamburger Mary’s alleges that the law violates its First Amendment rights, according to the court order.
The company’s lawyers argue that terms like “lewd conduct” and “child” contained in the law are ambiguous and require “broad subjectivity” in interpretation.
“What may be obscene for a child of four may not be obscene for a 17-year-old, but plaintiff alleges it cannot risk its business licenses or an arrest trying to guess how regulators will enforce the statute,” Presnell said in the order.
The company’s lawsuit notes that DBPR secretary Melanie Griffin, the defendant named in the case, revoked the liquor license of Orlando’s Plaza Live on Dec. 28, 2022, after it hosted the “A Drag Queen Christmas” show on Dec. 23–25.
And the company complains in the lawsuit that after informing customers it would no longer allow children to attend its drag shows, it saw immediate cancellation of 20 percent of their bookings for shows on and after May 21, 2023.
Previous Supreme Court opinions acknowledge the public interest in protecting minors from obscenity, Presnell, appointed to the federal bench by President Bill Clinton in 2000, finds in his decision. But he ruled that the state law isn’t drawn narrowly enough to pass First Amendment muster.
A 1968 decision on a case where a convenience store operator sold two adult magazines to a 16-year-old boy hinged on a law that didn’t prohibit parents from purchasing such magazines for their own children, Presnell wrote. Florida’s law, by contrast, “does not allow for the exercise of parental discretion” by allowing parents to choose whether to take their child to such a performance.
As such, it conflicts with the state’s “Parents’ Bill of Rights,” also passed this year, which states “all parental rights are reserved to the parent of a minor child in this state ... including ... the right to direct the upbringing and the moral or religious training of his or her minor child,” Presnell wrote.
Also, Presnell wrote, the Florida law does not adequately define such terms as “live performance,” “child,” “lewd conduct,” and “lewd exposure of prosthetic or imitation gentials or breasts.” A “live performance,” he wrote, “could conceivably range from a sold-out burlesque show to a skit at a backyard family barbecue.”
Presnell noted that the state, under a different law, already prohibits the exposure of minors to “harmful motion pictures, exhibitions, shows, presentations, or representations.” That law doesn’t contain ambiguous terms like those mentioned and does allow minors to attend if accompanied by his or her parents, Presnell wrote.
The state law uses terms like “wicked,” “lustful,” and “unchaste,” which are “vulnerable to broad subjectivity,” forcing the average individual to guess at their meaning, Presnell wrote.
“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” while not meeting obscenity standards laid down by earlier high-court decisions.
“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?”
This vulnerability to overbroad enforcement threatens free speech protections, he wrote, “and renders plaintiff’s claim likely to succeed on the merits,” Presnell wrote.
The state’s contention that a statewide preliminary injunction would harm the public by exposing children to adult live performances “rings hollow, however, when accompanied by the knowledge that Florida state law, presently ... 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 the new law, he wrote.
In granting the injunction, Presnell wrote, “Plaintiff contends that its 15 years of incident-free, harmless drag shows demonstrates the absence of any substantial harm to defendant or to the public interest.”
“Moreover,“ he continued, ”existing obscenity laws provide defendant with the necessary authority to protect children from any constitutionally unprotected obscene exhibitions or shows. The harm to plaintiff clearly outweighs any purported evils not covered by Florida law.”
