Washington – The Supreme Court on Thursday refused to allow enforcement of a Florida law banning children from attending drag shows, leaving in place a lower court ruling while a legal challenge continues.
The court’s order rejected a request by Florida officials to narrow the scope of an injunction issued by a federal district judge in June to apply only to an Orlando restaurant known as Hamburger Mary’s, which challenged the constitutionality of the new law. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted Florida’s request to allow the law to apply to other establishments in the state.
Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, said in a separate statement that the court’s denial of Florida’s request did not reflect their views on whether the law violates the First Amendment.
At issue in the case is the Child Protection Act, which Florida Governor Ron DeSantis signed into law in May. DeSantis is seeking the 2024 Republican presidential nomination and has billed himself as a champion of “parental rights,” an issue that has gained prominence in the GOP presidential field.
The law prohibits anyone from knowingly admitting a child to an “adult live performance”, which is defined as a show that “depicts or simulates nudity, sexual conduct, sexual arousal, or specific sexual acts” and is “patently offensive to prevailing standards in the adult community” regarding what is appropriate for the age of the child in attendance.
Establishments that don’t comply with the law can be fined and lose their liquor licences. Violators can also be charged with misdemeanours.
Hamburger Mary’s, which hosted “family friendly” drag show performances, sued the state over the law, arguing that it violated the First Amendment. The restaurant asked a federal district court to block enforcement of the law while it considered its constitutionality.
A judge agreed to stop the state from enforcing the law, finding that Hamburger Mary’s was likely to succeed on its claims that the measure did not comply with the First Amendment.
U.S. District Judge Gregory Presnell, who is overseeing the case, said in a June order that the law’s language was likely overbroad and risked sweeping up protected speech in its enforcement. He also found that the ban on drag shows conflicted with another law, Florida’s Parents’ Bill of Rights, which states that parents have the right to “direct the upbringing and moral or religious training” of their child.
“Existing obscenity laws provide [the state] with the necessary authority to protect children from constitutionally unprotected obscene exhibitions or shows,” Presnell wrote. “The harm to [Hamburger Mary’s] clearly outweighs any alleged evils not covered by Florida law, and a preliminary injunction would not be contrary to the public interest.”
Florida officials asked a federal appeals court to partially stay the lower court’s order to allow enforcement against all entities except Hamburger Mary’s. But a divided three-judge panel of the 11th U.S. Circuit Court of Appeals denied the request.
The state then turned to the Supreme Court for emergency relief, arguing in a filing that the district court’s decision “inflicts irreparable harm on Florida and its children by purporting to erase from Florida’s statute books a law designed to prevent the exposure of children to sexually explicit live performances”.
“As long as the district court’s injunction remains in place, Florida is unable to enforce a law that its elected representatives enacted to protect its children,” Attorney General Ashley Moody told the court in her filing.
In its own filing with the Supreme Court, Hamburger Mary’s said that after Florida’s restriction went into effect, it had to place age restrictions on its drag show performances, leading to cancellations of bookings.
The restaurant warned that many of the performers who appear at the establishment work in other venues across the state and would be forced to censor their performances to avoid violating Florida’s law when performing elsewhere if the injunction only applied to Hamburger Mary’s.
“HM’s establishment would become the only business in the State of Florida where performers have the freedom of speech and expression guaranteed by the First Amendment,” wrote attorneys for Hamburger Mary’s. “A stay would chill creative competition and public conversation through performance art.”