drag restrictions
A federal appeals court has kept in place an injunction blocking Florida from enforcing a law that would restrict drag shows in the state, saying the statute likely interferes with First Amendment-protected free speech.
In a lengthy opinion released Tuesday (May 13), two out of three judges on a panel for the Eleventh Circuit Court of Appeals upheld a district court injunction that bars Florida from enforcing its so-called Protection of Children Act. The statute aimed to prohibit children from attending “lewd” live performances at restaurants and bars, with Governor Ron DeSantis and state lawmakers singling out drag shows in public statements on the law.
A Florida federal judge sided with restaurant chain Hamburger Mary’s in 2023, finding that the law is overly broad and thus tramples on free speech. And in Tuesday’s ruling, two appellate judges — Robin S. Rosenbaum and Nancy G. Abudu — agreed.
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“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,” wrote Judge Rosenbaum for the majority.
Tuesday’s ruling means the 2023 injunction will remain in effect for now, and Florida cannot enforce this law while the Hamburger Mary’s lawsuit continues. Discovery has concluded in the case, though a trial date has not been set.
“Obviously, we’re thrilled that the injunction is going to remain in place for the duration of this litigation,” Melissa Stewart, an attorney for Hamburger Mary’s, tells Billboard. “That means that the citizens of Florida will have their First Amendment rights while we finish litigating this case.”
Representatives for the state of Florida did not immediately return requests for comment.
First Amendment law allows governments to restrict “obscene” speech, but only when that speech encompasses “patently offensive” sexual material that appeals to a “prurient interest” and lacks serious artistic or political value.
The Eleventh Circuit majority says that because the Florida law targets an undefined mass of “lewd” shows, it could be used to squash all kinds of constitutionally-protected speech that does not meet the strict “obscenity” standard.
The opinion notes, for example, that a Florida enforcement agency previously revoked one venue’s liquor license after deeming “lewd” a performance in which a drag artist known as “Jimbo” mimicked giving birth to a pile of baloney.
The majority says that while Jimbo’s performance is a “bit odd (and hammy in every sense of the word),” it “cannot be deemed ‘obscene.’”
“One of the act’s sponsors’ stated intent to target ‘Drag Queen Story Time’ also helps show the potential breadth of a term like ‘lewd conduct,’” Judge Rosenbaum wrote. “Of course, one legislator’s interpretation of the act does not an authoritative construction make. But it does betray how much protected speech may fall within the act’s [scope].”
Judge Gerald Bard Tjoflat of the Eleventh Circuit disagreed, writing in a dissent that the majority opinion is wrong because it “reads the statute in the broadest possible way.”
Even if Florida’s statute is unclear, Judge Tjoflat continued, the proper remedy would be to ask the Florida Supreme Court to step in and offer an analysis rather than block enforcement completely.
Florida is among a number of red states that have enacted legislation restricting drag performances in recent years. A similar Tennessee law was also blocked by a judge in 2023, though the Sixth Circuit Court of Appeals reinstated it a year later.
A federal judge in Texas ruled Thursday that the state’s new law restricting drag performances was likely unconstitutional, issuing a temporary restraining order blocking the statute from going into effect on Friday.
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Following similar rulings by federal courts on such laws in Tennessee and Florida, U.S. District Judge David Hittner ruled that Texas’ statute, called Senate Bill 12, likely violated the First Amendment by restricting free speech.
“The Court finds there is a substantial likelihood that S.B. 12 as drafted violates the First Amendment of the United States Constitution under one or more of the legal theories put forward by the plaintiffs,” the judge wrote.
The ruling went in favor of a group of drag performers, drag production companies and non-profits that challenged the law. Represented by the American Civil Liberties Union, they argued that that S.B. 12 “criminalizes and restricts an enormous swath of constitutionally protected activity.”
Thursday’s order came as a temporary restraining order, which will only be in effect until the judge can issue a full written ruling. But the wording of the order indicates that he will likely strike down the law whenever he issues the more detailed decision.
Such a TRO, which can only be issued if a plaintiff proves they will suffer “irreparable harm” without one, was necessary because the law was set to go into effect on Friday.
“The court considers the impending infringement on the plaintiffs’ constitutional rights sufficient irreparable harm to warrant enjoining S.B. 12 while a final judgment is drafted,” Judge Hittner wrote.
Following the ruling, Paige Willey, spokeswoman for the Attorney General of Texas, told Billboard: “The people of Texas were appalled to learn of an increasing trend of obscene, sexually explicit so-called “drag” performances being marketed to families with children. The Office of the Attorney General will pursue all legal remedies possible to aggressively defend SB 12, the state law that regulates such performances to protect children and uphold public decency.”
A spokesperson for the ACLU did not immediately return a request for comment.
Passed by Texas lawmakers in May and signed by Gov. Greg Abbott in June, S.B. 12 expands criminal restrictions on public performance of sexual conduct. The original bill included explicit references to drag shows, but they were removed in response to criticism. Instead, the final version bans sexual gestures that use “accessories or prosthetics that exaggerate male or female sexual characteristics.” Violators can face up to a year in jail, and businesses hosting events can be fined $10,000 for each violation.
Critics say such statutes, proposed or passed in states across the country over the past two years, are a thinly-veiled attack on the LGBTQ community. The new laws have been closely-watched by the music industry, over concerns that aspects of concerts could run afoul of broad new restrictions.
The ACLU filed its lawsuit earlier this month, arguing that – despite the changes to the wording – the new statute “unconstitutionally singles out drag.” They said it was also “sweepingly overbroad and vague and fails to give adequate notice of what it proscribes.”
“In its zeal to target drag, the Legislature also passed a bill so yawning in scope that it criminalizes and restricts an enormous swath of constitutionally protected activity, including theater, ballet, comedy, and even cheerleading,” the group wrote.
The suit was filed on behalf of nonprofit LGBTQIA+ organizations The Woodlands Pride and Abilene Pride Alliance; drag entertainment companies Extragrams, LLC and 360 Queen Entertainment LLC; and drag performer Brigitte Bandit.
Earlier this week, Judge Hittner held a two-day trial-like hearing on the arguments from both sides. A final ruling is expected early next week.
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