Florida filed an emergency request to the Supreme Court asking it to allow the state to partially enforce its restrictions on drag performances.
Governor DeSantis signed the Protection of Children Act in May this year, which prohibits children from attending “adult live performance” and empowers the Department of Business and Professional Regulation to revoke or suspend the liquor license of establishments found in violation.
The Florida restaurant Hamburger Mary’s, which has hosted “family friendly” drag performances, filed a lawsuit against the state arguing that the Protection of Children Act violates the First Amendment.
U.S. District Judge Gregory Presnell issued a preliminary injunction in June, citing the law’s “vague language” and potential for “overbroad enforcement.”
“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, but such a scenario would not constitute the kind of obscene conduct prohibited by the statutes in cases like Miller,” Judge Presnell wrote. He continued, “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?”
Florida appealed and requested partial stay in July, arguing that the injunction should only apply to Hamburger Mary’s.
Judge Presnell rejected Florida’s request for partial stay, writing that Florida was trying to “neuter the court’s injunction” and would leave “every other Floridian exposed to the chilling effect of this facially unconstitutional statute.”
“Plaintiff is not the only party suffering injury as a result of the passage of the Act; it has a chilling effect on all members of society who fall within its reach,” Presnell wrote in his order.
The DeSantis administration appealed the case, and a 2-to-1 decision in October from the 11th Circuit Court of Appeals upheld the injunction and prevented Florida from enforcing the law, citing the “overbroad” language.
Judge Andrew Brasher dissented, arguing that the injunction should apply only to Hamburger Mary’s and not the entire state.
“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?” Judge Brasher wrote in his dissent. “The answer under our precedents is an emphatic ‘no.’”
Florida state officials filed an emergency request to the Supreme Court last week, requesting partial stay because the injunction “sweeps beyond the plaintiff and enjoins the statute universally.” The request was docketed on Tuesday.
“Florida is now unable to enforce its statute at all, to the detriment of Florida’s children and the State’s sovereign prerogative to protect them from harm,” reads the filing to the Supreme Court.
Justice Clarence Thomas will hear the request. If a partial stay is granted, the state would be allowed to enforce the law against venues except Hamburger Mary’s.