Judge blocks Florida ‘anti-drag’ law in response to Hamburger Mary’s lawsuit


ORLANDO, Fla. (WFLA) — A federal judge in Orlando has temporarily blocked the enforcement of a Florida law that opponents say stifles the free expression of drag artists, according to newly released court documents.

On Friday, Judge Gregory A. Presnell ordered a preliminary injunction in response to a lawsuit challenging the bill, which was filed by a drag-themed restaurant, Hamburger Mary’s, in the U.S. District Court for the Middle District of Florida.

Gov. Ron DeSantis signed SB-1438, titled “Protection of Children Act,” into law last month. State leaders say the legislation aims to shield children from obscene “adult live performances.” Opponents of the bill say it is “anti-drag.” Any business caught violating the statute is subject to fines and could have their operating or liquor licenses revoked by the Florida Department of Business and Professional Regulation (DBPR).

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The lawsuit, filed by Hamburger Mary’s, alleges that the bill “seeks to explicitly restrict, or chill speech and expression protected by the First Amendment based on its content, its message, and its messenger.” The business claims it has been forced to cancel its family-friendly events and to censor themselves out of fear because the statute’s language is “unconstitutionally vague and overbroad.”

In his ruling, Presnell said the Protection of Children Act “is specifically designed to suppress the speech of drag queen performers.” The judge quoted the bill’s sponsor, Rep. Randy Fine, who said the legislation “will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’”

The defendants in the case, which include Gov. DeSantis and DBPR Secretary Melanie Griffin, filed a motion to dismiss the lawsuit. They alleged that the lawsuit is a “shotgun pleading,” accusing Hamburger Mary’s of throwing “a mish-mash” of legal arguments at the wall and seeing what sticks. The defendants also sought to dismiss the lawsuit because they claim the the suit lacks legal standing to bring the case and that the State of Florida and its governor are protected by sovereign immunity.

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Presnell denied the motion to dismiss, saying Hamburger Mary’s faces “a substantial risk to its licenses due to (the law’s) vague and overbroad language.” He specifically pointed out the terms, “live performance,” “child,” “lewd conduct,” and “lewd exposure of prosthetic or imitation genitals or breasts” as examples of vague wording.

As justification for issuing the injunction, Presnell cited what he called “the Florida Legislature’s failure to narrowly tailor (the law) and is its inevitable clash with the Florida ‘Parents’ Bill of Rights’ and other laws.”

The “Parents’ Bill of Rights,” dubbed the “Don’t Say Gay” law by its opponents, states that: “All
parental rights are reserved to the parent of a minor child in this state…including…[t]he right to direct the upbringing and the moral or religious training of his or her minor child.”

Presnell said the “Protection of Children Act” likely contradicts Florida Statute 847.013, which controls minors’ exposure to “harmful motion pictures, exhibitions, shows, presentations, or representations.” Specifically, the judge pointed to part of the law that “allows for a minor accompanied by his or her parents to attend any such exhibitions, regardless of the minor’s age.” Presnell compared a parent taking their child to a drag show to a parent taking their child to see an R-rated movie.

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The “Protection of Children Act” was set to go into effect on July 1. Presnell ordered that Griffin and the DBPR must not enforce the law until the court can conduct a trial on the merits of the case.

In response to the ruling, a spokesperson for Gov. DeSantis said the following:

Of course it’s constitutional to prevent the sexualization of children by limiting access to adult live performances. We believe the judge’s opinion is dead wrong and look forward to prevailing on appeal.

Jeremy Redfern, Press Secretary 

A similar bill passed in the Lone Star State during its latest legislative session. Texas Senate Bill 12 bans “sexually oriented performances” in the presence of minors, with similarly broad language that has concerned many LGBTQ advocates.

Lambda Legal South Central Regional Director Shelly Skeen told KXAN News in Austin: “When you have bills like this one [SB 12] — it’s very ambiguous — that makes it more likely subject to a legal challenge, because you could be arrested for something and not know that the thing that you’re doing could be a violation.”

Sexuality and drag performance

It’s important to note that while some segments of drag performance can be sexual in nature, this is not always the case. Generally, “family-friendly” events merely feature performers in more comedic settings and situations. Nevertheless, detractors claim drag is inherently sexual.

Questions about drag have arisen in conversations around transgender identities, as the two are often conflated, despite having two different meanings. In its most basic sense, “drag” typically refers to an art form of men (either heterosexual or queer) dressing as women for theater – a tradition that dates back to Shakespearean days, BBC reports.

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Trans people have been integral to the development of drag, particularly American performers like activist and Gay Liberation Front co-founder Marsha P. Johnson, who were at the forefront of LGBTQ+ civil rights in 1970s New York City.

Often, drag queens use their drag for more serious activism and even light-hearted comedy. It’s important to note that the art form of drag is not inherently sexual or tied to any one sexual orientation or identity.


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