DeSantis administration asks federal appeals court to put drag show law ruling on hold

The state filed a motion that said Judge Presnell overstepped when he issued a preliminary injunction

click to enlarge Hamburger Mary's located in downtown Orlando, Florida. - churchstreetstation/Instagram
Hamburger Mary's located in downtown Orlando, Florida.
Gov. Ron DeSantis’ administration is asking a federal appeals court to largely put on hold a ruling that blocked a new law aimed at preventing children from attending drag shows.

The state filed a motion Friday at the 11th U.S. Circuit Court of Appeals that said U.S. District Judge Gregory Presnell overstepped when he issued a preliminary injunction that applied statewide against the law. Presnell’s ruling came in a constitutional challenge filed by the Orlando restaurant Hamburger Mary’s.

The motion seeks a stay of the injunction while the DeSantis administration pursues an appeal at the Atlanta-based court. The motion, if granted, would allow the law to be enforced against establishments statewide — except against Hamburger Mary’s, which would continue to be shielded by the injunction during the appeal.

“An injunction preventing enforcement of the statute against HM (Hamburger Mary’s) fully protects HM from any … harm,” the motion, filed by lawyers in Attorney General Ashley Moody’s office, said. “In granting broader relief, the district court irreparably harmed the state by ordering it to refrain from enforcing a duly enacted law designed to protect children from exposure to age-inappropriate, sexually explicit live performances.”

Presnell issued the injunction in June on First Amendment grounds and later rejected a similar motion by the state for a partial stay. He wrote that the state was trying to “neuter the court’s injunction” by having it apply only to Hamburger Mary’s.

“Protecting the right to freedom of speech is the epitome of acting in the public interest,” Presnell wrote in the July 19 rejection of a stay. “It is no accident that this freedom is enshrined in the First Amendment. This injunction protects plaintiff’s (Hamburger Mary’s) interests, but because the statute is facially unconstitutional, the injunction necessarily must extend to protect all Floridians.”

The law, dubbed by sponsors as the “Protection of Children Act,” would prevent venues from admitting children to adult live performances. It defines adult live performances as “any show, exhibition, or other presentation that is performed in front of a live audience, which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

Regulators would be able to suspend or revoke licenses of restaurants, bars and other venues that violate the law. Also, it would prohibit local governments from issuing public permits for events that could expose children to the targeted behavior. In addition, people could face first-degree misdemeanor charges for “knowingly” admitting children to adult live performances.

While the law does not specifically mention drag shows, it came after the DeSantis administration cracked down on venues in South Florida and Central Florida where children attended drag shows. It also passed this spring amid a wave of bills in Florida and other Republican-led states targeting LGBT-related issues.

Hamburger Mary’s, which says it has run “family friendly” drag shows for 15 years, filed the lawsuit in May, and Presnell ruled June 23 that the law is not “sufficiently narrowly tailored” to meet First Amendment standards.

Presnell’s injunction barred the state Department of Business and Professional Regulation from “instituting, maintaining or prosecuting any enforcement proceedings under the act until further order of the court following a trial on the merits of this case.” The defendant in the case is Melanie Griffin, secretary of the Department of Business and Professional Regulation.

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