The state of Florida is calling on the U.S. Supreme Court to step in and limit the scope of an injunction placed on a new state law barring children from attending live drag shows that showcase “lewd” behavior.
The parties in the case before the high court – Secretary of the state Department of Business and Professional Regulations Melanie Griffin and the owner of Hamburger Mary’s Restaurant and Bar in Orlando – filed arguments last week. Attorneys for Florida are seeking to have an injunction against the state’s Protection of Children Act, which was put in place by a judge in the Middle District of Florida, limited to only Hamburger Mary’s, rather than having it apply universally around the state.
The 11th U.S. Circuit of Appeals denied the state’s effort to appeal the ban on enforcing the new law, setting the stage for state officials to bring the matter before the U.S. Supreme Court.
Attorneys for Hamburger Mary’s, which has a history of staging drag show performances, comedy sketches and dancing sessions, contends there are no pressing circumstances that would warrant the high court responding to the state’s request for relief.
“Florida already has constitutional laws in place that prevent children from viewing sexually explicit materials, and the state has previously enforced those laws,” Hamburger Mary’s reply to the state’s application says. “The state will suffer no irreparable harm by maintaining the status quo for the duration of this litigation.”
But Florida’s response to Hamburger Mary’s position contends that the injunction should only be applied to Hamburger Mary’s since it is the sole plaintiff. Hamburger Mary’s interests in the litigation can be protected through such a limited injunction, according to the reply the state submitted to the Supreme Court last week.
“If Hamburger Mary’s believes that prohibiting businesses from displaying lewd performances to children is ‘chill(ing) creative competition and public conversation through performance art” … it could have sought class certification to protect nonparties,” Florida’s reply says.
Gary Israel, one of the attorneys representing Hamburger Mary’s, emphasized that the Supreme Court is not being asked to decide the merits of the case.
“The appeal from the state of Florida to the Supreme Court does not contest the unconstitutionality of the statute,” Israel told the Florida Record. “... The only thing they are doing is complaining that the order from the circuit and district courts should only be applied to Hamburger Mary’s and not be applied universally.”
He said he remains optimistic about the plaintiff’s arguments, which include labeling the Florida law overbroad, vague and a facial violation of the First Amendment.
“I don’t think this is going to hold up any (lower court) proceedings one way or another,” Israel said.
The state’s attorneys see the scope of the injunction as pressing and well within the high court’s purview historically.
“The district court’s conclusion to the contrary inflicts irreparable harm on Florida and its children by categorically precluding Florida from enforcing a law that restricts displaying lewd live adult performances to children,” the state’s most recent brief says.