Another Judge, Another Drag Ban BOUNCED, You Unconstitutional Bastards!

Bottomless mimosas for everyone!

Wooohooo! Another scalp for Big Woke as Florida's drag ban gets tossed as an unconstitutional ban on speech.

On Saturday, US District Judge Gregory Presnell, an octogenarian Clinton appointee, enjoined law enforcement from enforcing Florida Statute § 827.11 , which bars children from attending any "adult live performance" featuring "the lewd exposure of prosthetic or imitation genitals or breasts" which "1. Predominantly appeals to a prurient, shameful, or morbid interest; 2. Is patently offensive to prevailing standards in the adult community of this state as a whole with respect to what is suitable material or conduct for the age of the child present; and ... 3: is without serious literary, artistic, political, or scientific value for the age of the child present."

What the hell do those words mean?

No one knows! Certainly not the plaintiff, Hamburger Mary’s Restaurant and Bar in Orlando, which advised its customers that children would no longer be permitted to attend its family-friendly drag shows and witnessed the immediate cancellation of “20% of their bookings…for the May 21, 2023, show and for future bookings.”

 And that's the whole point. 

If no one knows what the statute means, then citizens will preemptively censor themselves for fear of running afoul of it. Particularly after witnessing defendant Melanie Griffin, Secretary of the Florida Department of Business and Professional Regulations, send undercover cops into Orlando’s Plaza Live's Christmas show and go after the bar's liquor license, despite “no lewd acts such as exposure of genital organs” being observed during the program. In light of that, how could Hamburger Mary's go forward with its own drag queen brunch?

The court dryly notes "Defendant’s appetite for finding obscenity in drag performances, even where undercover state agents have reportedly concluded none exists."

Governor Ron DeSantis and his goons can't write a law that says "we're attacking drag queens because it plays well with our bigoted base, so we're enacting a content-based speech restriction under cover of protecting kids." Although, as Judge Presnell notes, state Rep. Randy Fine, the bill’s sponsor in the House, took to Facebook to say the quiet part out loud, bragging that the law “will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’”

Randy Fine spends a lot of time thinking about drag queens and their bits. For the kids! Which is probably why he got overheated and admitted that he was violating the First Amendment. But, as it turns out, "ending the gateway propaganda to this evil" is not a sufficiently compelling government interest to satisfy the strict scrutiny standard, which requires the state to curtail speech as narrowly as possible. And since this law is facially a content-based regulation of expressive conduct, that's what it would have to do to survive a legal challenge.

Judge Presnell found that the statute failed not only because terms like "lewdness" are unconstitutionally vague but also because the bill is significantly broader than necessary to achieve the stated aims of protecting children. What about prosthetics worn by cancer victims? Why is drag equally inappropriate for a four-year-old and a 17-year-old? Why is there no parental permission provision, as there is with R-rated movies, to which children are allowed admission with a parent? And how can this bill possibly be squared with Florida's new "Parents Bill of Rights" which purports to give parents control over what their children can be exposed to?  

Judge Presnell joins several other federal judges in booting the anti-drag laws which are the current front in the GOP's neverending culture war on LGBTQ+ Americans. Last week US District Judge David Nuffer bounced a Utah town's drag ban, writing :

Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

And earlier this month in Tennessee, Judge Thomas Parker, a Trump appointee, nixed Tennessee's Adult Entertainment Act, noting that, while its stated aim was to protect children, the Legislature's "predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born."

Turns out, hating gay people and trying to win elections by bashing them is not a compelling government interest after all. And so Florida's drag ban joins DeSantis's social media law and his anti-woke education law and his ban on gender-affirming care for minors and his attack on Disney in the dustbin of history.

And judging by the frequency with which Governor Ron DeSantis likes to get publicly spanked with a gavel, it seems inevitable that the Legislature will soon have to ban that, too. For the children!

[ HM Florida-ORL, LLC v. DeSantis , Docket via Court Listener]

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