By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — An Orlando restaurant and bar Thursday argued the U.S. Supreme Court should keep in place a statewide preliminary injunction against a law aimed at preventing children from attending drag shows.
Attorneys for Hamburger Mary’s wrote in a 17-page document that the Supreme Court should deny a request by Gov. Ron DeSantis’ administration that would allow the law to be enforced against all venues in the state — except Hamburger Mary’s — while a legal battle continues to play out.
“HM (Hamburger Mary’s) does not operate its restaurant and present its performances in a vacuum,” the document said. “The artists who perform at HM’s establishments perform in other venues across the state of Florida. If the injunction were limited to HM, other establishments could be subject to penalties under the act for the same performances by the same performers. Artists who perform anywhere other than this single Hamburger Mary’s location will be forced to censor their performances to avoid running afoul of the law. HM’s establishment would become the only business in the state of Florida where performers have the freedom of speech and expression guaranteed by the First Amendment.”
U.S. District Judge Gregory Presnell issued the preliminary injunction in June, finding that the law, approved this spring by DeSantis and the Republican-controlled Legislature, violated the First Amendment. While Hamburger Mary’s is the plaintiff in the challenge to the constitutionality of the law, Presnell applied the injunction statewide.
The state sought a partial stay of the injunction to apply it only to Hamburger Mary’s while the underlying lawsuit continues. After Presnell and a panel of the 11th U.S. Circuit Court of Appeals rejected the state’s request, lawyers representing Florida Department of Business and Professional Regulation Secretary Melanie Griffin, the named defendant in the case, took the issue to the Supreme Court last month.
“This is not a class action, and there is but one plaintiff: a restaurant in Orlando, Florida, known as Hamburger Mary’s, which claims that the statute unconstitutionally deters it from presenting to children live drag shows that are not sexually explicit,” the state’s attorneys wrote in the Supreme Court filing. “Even if such performances violated the statute, all Hamburger Mary’s needs to remedy its alleged injury is an injunction precluding the state from enforcing the statute against Hamburger Mary’s. Extending that relief to others not before the court did nothing to alleviate Hamburger Mary’s asserted injury and exceeded the district court’s remedial authority.”
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 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 LGBTQ-related issues.
In the document filed Thursday at the Supreme Court, attorneys wrote that Hamburger Mary’s frequently hosts drag-show performances, comedy sketches and dancing.
“HM is and has always marketed itself as a family restaurant,” the document said. “Parents and grandparents often attend shows with their children, and HM leaves it up to parents to determine whether a particular show is appropriate for the age of their own child.”
In arguing that the Supreme Court should keep in place the statewide injunction, the attorneys said Presnell ruled the law is likely overbroad in violation of the First Amendment.
“The overbreadth (legal) doctrine is concerned not only with the parties before the court, but with a chilling effect on society as a whole,” the Hamburger Mary’s attorneys wrote. “The state asks this court to require that every person affected by an overbroad restriction on speech litigate the issue individually in order to secure their own rights. This impracticality is precisely what the overbreadth doctrine seeks to remedy.”
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