On A Blistering Decision A Judge Strikes Down "Di Santis" Law Drag Ban
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This week, the Eleventh Circuit Court of Appeals issued a 2-1 decision against the law, effectively continuing a lower court’s injunction against the law and sending it back down to Florida’s Middle District to receive a full bench trial.
Appeals Court Judge Robin Rosenbaum wrote that the law’s prohibition against “lewd conduct” was like a “prosecutorial skeleton key” that any state officials could use to ban speech that they consider obscene.
“Florida’s S.B. 1438 takes an ‘I know it when I see it’ approach to regulating expression,” Rosenbaum wrote in the majority court decision. “The Act prohibits children’s admission to ‘live performances’ that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most.”
“The possibility that [Florida officials] might view a gender-bending but chaste drag performance as ‘lewd’ and lacking ‘value’ is far from an unreasonable conclusion,” she added.
Rosenbaum also called the law “the Goldilocks of speech regulation, ensuring each child can access only that speech that is ‘just right’ for their age.” However, she said that what might be considered appropriate for a 15-year-old might differ from what might be considered appropriate for a 16-, 17-, 18-year-old, or a pre-teen child.
She also noted that Miami is home to a historic, 35-foot-tall billboard for Coppertone sunscreen, which features the brand’s historic logo—“a girl, perhaps age seven, or so, with a dog pulling at her swimsuit, revealing her pale posterior and its contrast with her tanned skin,” Florida Politics reported.
“Would a depiction like the Coppertone logo be ‘patently offensive’ for a five-year-old? An eight-year-old? How about a 17-year-old? We don’t know, and we don’t think the burden should be on speakers to find out,” Rosenbaum wrote.
“To be sure, Hamburger Mary’s [the restaurant whose Orlando franchise first challenged the ban in court] believes its family-friendly performances contain no ‘lewd’ or ‘sexually explicit’ content,” Judge Rosenbaum continued. “But Hamburger Mary’s also makes clear that its drag shows, like almost all shows in the genre, involve performers wearing ‘clothing more conventionally worn by the other sex’ and often ‘[p]rosthetic breasts.’ And it notes that some people might consider even ‘a man in a dress’ reading to young children to violate the statute.”
Following the ruling, Hamburger Mary’s co-owner John Paonessa told The Orlando Sentinel, “For [conservatives], lewd and inappropriate is just a drag queen dressed in clothes not exposing anything. That to them is too much.” Though the Orlando Hamburger Mary’s franchise closed last year, Rosenbaum said that the free speech issue in the case still warranted a decision.
Celebrating the ruling, the state’s leading LGBTQ+ advocacy organization, Equality Florida, wrote via Facebook, “This is yet another blow to DeSantis’ censorship and surveillance agenda — and a win for freedom for all Floridians.”
The ruling is yet another stinging loss against drag bans
The case began when, in May 2023, DeSantis signed a bill allowing the state Department of Business and Professional Regulation to revoke the business licenses of any venues that allow minors to see drag performances, even if their parents consent, as well as issue $5,000 and $10,000 fines against the business. Anyone who violates the law can be charged with a criminal misdemeanor.
The drag-themed restaurant chain Hamburger Mary’s challenged the law in court, saying that it harmed their business and violated their free speech rights. In late July 2023, District Judge Gregory Presnell agreed, calling the ban “vague and overbroad,” pointing out that its text bans any “lewd” “live performance” without defining what either term means — meaning that it could apply to “a sold-out burlesque show to a skit at a backyard family barbecue.”
Presnell pointed out that any concern about the law protecting children “rings hollow,” seeing as state law “permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian.” He placed a temporary statewide injunction against the ban and then allowed his injunction to remain in place even though DeSantis’ lawyers argued that doing so would cause Florida “irreparable harm.”
State officials appealed Presnell’s decision, asking for a partial injunction so that the law could go into effect. They argued that the injunction “sweeps beyond [Hamburger Mary’s] to nonparties who may wish to expose children to live obscene performances in violation of the statute,” Newsweek reported. The officials’ reasoning was dishonest, however, since Florida already has laws in place to protect children from viewing live obscene performances.
When an appeals court upheld Presnell’s decision in October 2023, DeSantis asked the U.S. Supreme Court to undo the injunction, but the court refused.
Courts have blocked similar drag bans from going into effect in Tennessee and Texas.
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