Supreme Court leaves in place pause on Florida law banning kids from drag shows

Washington — The Supreme Court on Thursday declined to allow enforcement of a Florida law that prohibits children from attending drag shows, keeping in place a lower court ruling as a legal challenge continues.

The court’s order rejects a request from Florida officials to narrow the reach of an injunction issued by a federal district judge in June to apply only to a restaurant in Orlando 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 bid to allow the law to take effect against 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 does not speak to their views on whether the law violates the First Amendment.

At issue in the case is the Protection of Children Act, which Florida Gov. 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 grown in prominence among the GOP presidential field.

The law prohibits any person from knowingly admitting a child to an “adult live performance,” which is defined as a show that “depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities” and is “patently offensive to prevailing standards in the adult community” regarding what is suitable for age of the child in attendance. 

Establishments that don’t comply with the law are subject to fines and can lose their liquor licenses. Violators can also be charged with a misdemeanor.

Hamburger Mary’s, which hosted “family friendly” drag show performances, sued the state over the law, arguing it violates the First Amendment. The restaurant asked a federal district court to block enforcement of the measure while it considers its constitutionality.

A trial court agreed to stop the state from enforcing the law, finding Hamburger Mary’s is likely to succeed on its claims that the measure does not comport 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 is likely overbroad and risks sweeping up protected speech through its enforcement. He also found that the prohibition on drag shows clashes with another law, Florida’s “Parents’ Bill of Rights,” which states that parents have the right to “direct the upbringing and the moral or religious training” of their child.

“Existing obscenity laws provide [the state] with the necessary authority to protect children from any constitutionally unprotected obscene exhibitions or shows,” Presnell wrote. “The harm to [Hamburger Mary’s] clearly outweighs any purported evils not covered by Florida law and a preliminary injunction would not be adverse to the public interest.”

Florida officials asked a federal appeals court to partially pause the lower court’s order to allow enforcement against all entities but Hamburger Mary’s. But a divided three-judge panel on 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 preliminary injunction remains in place, Florida is powerless to enforce a law its elected representatives have enacted for the protection of its children,” Attorney General Ashley Moody told the court in her request.

In its own filing with the Supreme Court, Hamburger Mary’s said that after Florida’s restriction took effect, it had to place age restrictions on its drag show performances, leading to cancellations of its bookings.

The restaurant warned that many of the artists who perform 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 appearing elsewhere if the injunction applied only 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,” lawyers for Hamburger Mary’s wrote. “A stay would chill creative competition and public conversation through performance art.”

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