Florida Anti-Drag Law Blocked by Judge for Violating First Amendment

A federal judge in Florida on Friday (June 23) blocked the state from enforcing its recently enacted restrictions on drag performances, ruling that the law likely violates the First Amendment.

Siding with the Hamburger Mary’s restaurant chain, which warned the law would have “a chilling effect” across the state, Judge Gregory A. Presnell ruled that the new statute appeared to be an unconstitutional restraint on free speech.

Florida argued that the new law, signed by Gov. Ron Desantis last month, was needed to protect children from “lewd” material, but Judge Presnell ruled that the state had likely not written the restrictions narrowly or specifically enough to pass muster under the First Amendment.

“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?” the judge wrote

“It is this vague language — dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech — which … renders plaintiff’s claim likely to succeed,” the judge wrote.

The ruling imposed a temporary restraining order barring the law from being enforced while the case is litigated toward a final decision. Neither side immediately returned requests for comment.

Friday’s decision came less than a month after Tennessee’s similar new law restricting drag performances was blocked by a federal judge on the same grounds. Critics say the new statutes, two of many proposed in states across the country, are a thinly-veiled attack on the LGBTQ community.

Signed into law by DeSantis on May 17, the proponents of Florida’s new statute law say it bans minors from “sexually explicit adult performances in all venues.” But critics say the law’s wording takes aim at drag shows, including a provision targeting shows featuring “lewd exposure of prosthetic or imitation genitals or breasts.”

In its lawsuit challenging the law, Hamburger Mary’s said new statute was designed to be vague, forcing venues across the state to impose self-censorship on drag performances out of fear of running afoul of the law’s provisions.

In Friday’s decision, Judge Presnell said the restaurant chain would likely prevail on those arguments.

Under First Amendment case-law, government restrictions on “obscene” material are fair game, but they are subject to “strict scrutiny” – meaning they are only constitutional if lawmakers “narrowly tailor” them avoid harming free speech. In his decision, the judge said it appeared that Florida’s legislature had failed to do so.

“The many ambiguities concerning the scope of [the law]’s coverage render it problematic for purposes of the First Amendment,” the judge wrote, quoting from earlier free obscenity cases. “[The statute] proscribes conduct universally and threatens to permit a standardless sweep which would allow policemen, prosecutors, and juries to pursue their personal predilections.”

Following the ruling, Florida could continue to litigate the case before Judge Presnell, or it could seek to file a fast-track appeal at the U.S. Court of Appeals for the Eleventh Circuit.