Florida's anti-drag law is likely unconstitutional, federal judge rules. A growing pattern.

The “adult live performance” law is an attempt "to suppress the speech of drag queen performers," a federal judge ruled in the Hamburger Mary's lawsuit.

Florida is barred from enforcing its new anti-drag law (SB 1438), a federal judge ruled Friday, issuing a preliminary injunction in a case brought by Hamburger Mary's, the restaurant chain that features drag performers as part of its business.

It the course of his order, US District Judge Gregory Presnell at one point concluded that the law’s restrictions on and definitions of “adult live performance” — codified as § 827.11 — are “dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech.”

While the state claimed the law aims to “protect children” by banning children from covered performances, Presnell cut through that claim quickly and throughout his 24-page opinion. From the opening paragraph, Presnell, an 80-year-old Clinton appointee, called out the state of Florida's actions as actually being an attempt "to suppress the speech of drag queen performers.”

Ultimately, Presnell issued a preliminary injunction barring the state’s secretary of the Department of Business and Professional Regulation from implementing or enforcing the law, after finding that the law likely violates the First Amendment and is likely unconstitutionally vague and overbroad.

This was the second ruling against an anti-LGBTQ Florida law this week. On June 21, U.S. District Judge Robert Hinkle declared the state’s administrative and statutory bans on Medicaid coverage for gender-affirming medical care to be invalid.

The decision includes discussion of Republican Florida Gov. Ron DeSantis’s repeated efforts within his administration — both through legislative and administrative efforts — to go after drag performances. Presnell at one point described how plaintiffs pointed to other enforcement actions — like that against Plaza Live for hosting the “A Drag Queen Christmas” show — as part of “Defendant’s appetite for finding obscenity in drag performances, even where undercover state agents have reportedly concluded none exists.”

In his ruling, Presnell first described the law’s ban on admitting a child to an “adult live performance” and its definition of such performances — noting undefined terms present in the law.

The law then states: “A person may not knowingly admit a child to an adult live performance.”

Violating businesses are threatened with fines and the loss of their liquor license, and individual violators are threatened with a first-degree misdemeanor (which is punishable by up to a year in prison). There are no exceptions, and the law specifically states that “[a] person’s ignorance of a child’s age, a child’s misrepresentation of his or her age, or a bona fide belief of a child’s consent may not be raised as a defense.”

Presnell then addressed preliminary matters raised by the state in its attempts to get the case tossed, including challenging that Hamburger Mary’s didn’t have standing to bring the lawsuit and that their lawsuit was a type of “shotgun pleading” that should be dismissed because it didn’t give the defendants notice of, essentially, why they were being sued and under what laws. As to that, Presnell wasn’t biting:

While Plaintiff’s Complaint may leave room for improvement, its logical outline structure in no way equates to a “mish-mash” that leaves Defendant to “speculate as to which claims [she] should be defending against.”

Presnell went on to find that Hamburger Mary’s has standing, crediting the restaurant’s argument that they reasonably fear prosecution because the law is broad and vague enough that the restaurant doesn’t know what is safe to do under it, particularly in light of the state’s enforcement priorities even before passage of the law. Additionally, he credited the “self-censorship” Hamburger Mary’s cited by banning children from its shows — “despite not being obscene” — and the lost profits it cited due to that self-censorship.

In light of all that, Presnell denied the state’s motion to dismiss Hamburger Mary’s complaint.

From the Hamburger Mary’s Orlando website

As to the actual preliminary injunction request, Presnell first found that the law is a “facially content-based regulation” subject to strict scrutiny under the First Amendment. Because of that, he continued, “the government must use the least restrictive means available to achieve a compelling purpose.”

While Presnell credited the state’s compelling interest in “protecting the physical and psychological well-being of minors,” he went on to find that the new law was not the least restrictive means of protecting its interest. As with the injunction issued against the Tennessee anti-drag law, the lack of any parental consent exceptions was discussed regarding the Florida law. “The Act does not allow for the exercise of parental discretion,” Presnell wrote.

He also noted that the Florida law has “apparent universal application … to anyone, anywhere,” including — “conceivably” — “a skit at a backyard family barbecue.”

Summarizing these tailoring problems, Presnell wrote:

Unlike comparable statutes which target commercial activity and are more narrowly tailored in their scope to allow for parental discretion, specific age thresholds, and clearly defined terms, § 827.11 proscribes conduct universally and threatens to permit “a standardless sweep [which would] allow[] policemen, prosecutors, and juries to pursue their personal predilections.”

Because of that, “Plaintiff is therefore likely to succeed on its First Amendment claims.”

For similar reasons, Presnell found that Hamburger Mary’s is likely to succeed in its claims that the law is unconstitutionally vague and overbroad.

Presnell then quickly concluded that the restaurant succeeded in its arguments on the remaining questions asked regarding a preliminary injunction request and granted the request.

This is a breaking news story. Check back at Law Dork for updates.

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