11th Circuit deals blow to DeSantis Admin on drag shows for children crackdown

by | Oct 12, 2023

  • The 11th U.S. Circuit Court of Appeals upheld an injunction against a new Florida law known as the “Protection of Children Act.”
  • The law sought to prohibit minors from attending events featuring sexual or lewd content and could have resulted in penalties for violators.
  • The ruling denied a request from Gov. Ron DeSantis’ administration for a partial stay, but effectively extended the injunction to cover all venues across the state. 
  • The rejection of the DeSantis Administration’s request means that the law will remain unenforceable statewide during the ongoing appeal process.

A 2-1 decision by the 11th U.S. Circuit Court of Appeals on Wednesday upheld a previous injunction that halted a new Florida law restricting children from attending certain adult live performances, such as drag shows. The ruling denied a request from Gov. Ron DeSantis’ administration for a partial stay on the injunction, originally put in place by U.S. District Judge Gregory Presnell, who was appointed to the federal bench by President Bill Clinton in the final months of his presidency.

DeSantis’ lawyers had argued the injunction should be limited to Orlando restaurant Hamburger Mary’s, which had filed the initial lawsuit. However, the court extended the ruling to all venues statewide. Presnell had earlier stated that the law was likely “overbroad and unconstitutional” under the First Amendment, a position supported by Appeals Judges Adalberto Jordan and Robin Rosenbaum. Both were appointed by President Barack Obama. A third judge, Andrew Brasher, appointed to the 11th Circuit by President Donald Trump, dissented, saying he would have only upheld the lower court’s ruling as it applied to Hamburger Mary’s, rather than expanding it to all state venues.

The rejected request for a partial stay means the law will remain unenforceable throughout the state during the ongoing appeal process. The law, known as the “Protection of Children Act,” sought to ban minors from events showcasing sexual or lewd conduct. Violators could have faced license suspensions or revocations, and even misdemeanor charges.

The law has been controversial, attracting attention from both business owners across the political spectrum, and social conservative groups. While its text doesn’t specifically mention drag shows, its introduction followed increased scrutiny by the DeSantis administration on venues in South Florida and Central Florida hosting such shows attended by minors. The law also came amid a slew of bills across Republican-led states aiming at LGBTQ-related concerns.

Hamburger Mary’s, which described its drag shows as “family friendly,” initiated the lawsuit earlier this year. The restaurant argued that the law wasn’t “narrowly tailored” enough to meet First Amendment requirements. Presnell’s ruling prohibited the state Department of Business and Professional Regulation from enforcing the act, setting the stage for a longer legal battle.

Wednesday’s appellate court ruling did not settle the overarching issue but was solely concerned with whether or not the law could be enforced during the pending appeal. The dissenting judge, Andrew Brasher, stated he would have restricted the injunction to just Hamburger Mary’s, citing the venue’s “fear of being prosecuted” as sufficient grounds for an injunction limited to the restaurant.


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