Background

A federal judge in Florida has granted a preliminary injunction that bars the state from implementing a new law that seeks to severely restrict drag performances, a move that has alarmed the entertainment industry.

The Judge’s Order

U.S. District Court Judge Gregory Presnell issued the order on Friday that bars state officials from implementing the law passed last month that restricts the ability of businesses to offer drag performances if the venues are open to minors. The case was brought by a Florida outpost of the restaurant chain Hamburger Mary’s, which launched in San Francisco in 1972.

“This statute is specifically designed to suppress the speech of drag queen performers,” Presnell wrote in his 24-page order. Given that factor, the legislation is “not sufficiently narrowly tailored to survive strict scrutiny.” Presnell notes in his opinion that Florida already has laws on the books that help restrict children from being exposed to lewd or obscene material, even with parental consent.

The Law’s Impact

The bill passed last month is aimed at restricting the availablity of drag performances in the state at a time when top drag performers have gained prominence thanks to the hit VH1 series “RuPaul’s Drag Race,” and live drag shows are a popular staple of many bars, restaurants and nightclubs. The Florida law passed last month seeks to ban children from attending a “live adult performance” but what that exactly entails is not clear from the language of bill. It specifically cites the existince of “prosthetic or imitation genitals or breasts,” but as the judge notes, that could be applied to any performer who has had cosmetic surgery.

The Judge’s Critique

“A fully clothed drag queen with cleavage-displaying prosthetic breasts reading an age-appropriate story to children may be adjudged ‘wicked’ — and thus ‘lewd’ —by some, but such a scenario would not constitute the kind of obscene conduct prohibited by the statutes in [existing Florida laws],” Presnell wrote.” Moreover, 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? It is this vague language—dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech—which distinguishes [the law] and renders Plaintiff’s claim likely to succeed on the merits.”

The Injunction’s Impact

Moreover, the judge pointed to the higher standard created by the law for drag performances than other forms of entertainment.

Defendant professes that a statewide preliminary injunction would “harm the public by exposing children to ‘adult live performances,’ ” Presnell wrote. “This concern rings hollow, however, when accompanied by the knowledge that Florida state law, presently and independently of the instant statutory scheme, permits any minor to attend an R-rated film at a movie theater if accompanied by a parent or guardian. Such R-Rated films routinely convey content at least as objectionable as that covered [by the new law].”

The Plaintiff’s Argument

Hamburger Mary’s challenged the law on the grounds that it would have an economic and First Amendment impact on a business that has offered family-friendly drag shows on Sundays for years.

The Representative’s Motivation

“The harm to Plaintiff clearly outweighs any purported evils not covered by Florida law and a preliminary injunction would not be adverse to the public interest.”

The law was championed by Florida state Representative Randy Fine. According to public reports, Fine was outraged in 2019 when a Pride event held in Melbourne, Fla. included an performance billed as “Drag Queen Story Time.” As the judge noted in his ruling, “In the words of the bill’s sponsor in the House, State Representative Randy Fine: “…HB 1423…will protect our children by ending
the gateway propaganda to this evil — ‘Drag Queen Story Time.’ “

Legal Battle

With the injunction in place, the legal battle will move forward to a federal trial.