Supreme Court refuses to revive Florida law restricting drag shows
The Supreme Court declined to be revived on Thursday a Florida law which banned children from “live adult performances” such as drag shows.
The court’s brief order gave no reasons, which is typical when the justices act on emergency motions, and a First Amendment challenge to the law will continue in the lower courts.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch disagreed. Judge Brett M. Kavanaugh, joined by Judge Amy Coney Barrett, issued a statement emphasizing that the court’s order addressed an issue unrelated to the constitutionality of the law.
The order, he wrote, “does not indicate our position on whether Florida’s new law violates the First Amendment.”
Florida’s Republican-controlled Legislature passed the measure in April, and Governor Ron DeSantis, a Republican running for president who has made conservative culture war issues central to his agenda, signed the measure in May.
The law prohibits “lewd conduct” that “on the whole has no serious literary, artistic, political or scientific value for the child’s age.” The state can impose fines and suspend or revoke operating and liquor licenses for businesses that knowingly allow children to attend such performances.
Hamburger Mary’s, an Orlando restaurant that offers drag shows, including “family-friendly” shows, has filed a lawsuit against the law, saying it violates the First Amendment. The lawsuit said the law did not define terms like “lewd” and “child,” leaving the restaurant to guess which performances and which audience members were covered.
Judge Gregory A. Presnell of the Federal District Court in Orlando decided for the restaurantissuing a preliminary injunction blocking the law across the state because it was vague and overbroad.
“This statute is specifically designed to suppress the speech of drag queen performers,” the judge wrote.
He added that Florida law allows any minor to attend R-rated films, accompanied by a parent or guardian, and that “such R-rated films routinely convey content that is at least as offensive as the content covered by law”.
After a federal appeals court denied the state’s request to stay the ruling while it heard the case, administration officials asked the Supreme Court to intervene.
Officials said they would not object to the order if it were limited to Hamburger Mary’s. But they said Judge Presnell should not have blocked the law across the state.
The question of how broadly bans should apply has been the subject of controversy for years, and advocates and scholars have questioned whether and when so-called nationwide or universal bans are appropriate. Some judges have indicated that the court should address the question in an appropriate case.
But the one regarding the Florida law has a distinguishing feature that makes it unrepresentative of the general problem. Judge Presnell’s order relied on a doctrine endemic to First Amendment cases, one that allows judges to strike down overly broad laws because of their chilling effect on the speech of others.
In his statement Thursday, Judge Kavanaugh wrote that “the question of whether a district court, after finding that a law is unconstitutional, may nevertheless prohibit the government from enforcing that law against nonparties to the lawsuit is an important is a question that could justify our responsibility. revised in the future.”
But, he added, the Florida law case was an “imperfect vehicle.”
“The issue here arises in the context of an overbroad challenge to the First Amendment, which carries its own doctrinal complexities about the scope of relief,” he wrote. “This case is therefore an imperfect vehicle for examining the general question of whether a district court may enjoin a government from enforcing a law against nonparties to the lawsuit.”