The U.S. Supreme Court has declined the state of Florida’s application to partially block a lower court ruling that prevents Florida from enforcing a new state law barring minors from attending live drag shows.
Though the court denied the application on Nov. 16, three justices – Samuel Alito, Clarence Thomas and Neil Gorsuch – expressed support for the application, which involves a First Amendment lawsuit filed by an Orlando restaurant, Hamburger Mary’s, which regularly staged live drag shows.
A statement issued by Justice Brett Kavanaugh, which was joined by Justice Amy Coney Barrett, noted that the case focused on First Amendment overreach and thus had its own distinct legal complexities.
“This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation,” the statement says. “For that reason, the court is not likely to grant certiorari (review) on that issue in this particular case.”
Kavanaugh noted that no federal law expressly provides district courts with the authority to issue injunctions barring a law’s enforcement against non-parties in cases similar to the Hamburger Mary’s litigation. A federal district court judge, Gregory Presnell, previously ruled the restaurant had likely demonstrated that the new law was unconstitutional, and he enjoined enforcement of the law against the restaurant as well as non-parties.
“In sum, because this court is not likely to grant certiorari on the only issue presented in Florida’s stay application, it is appropriate for the court to deny the application,” Kavanaugh said.
Florida officials had argued that the injunction should only apply to Hamburger Mary’s and that the law should be enforced against non-parties during the litigation. If it had wanted a wider injunction, the plaintiff should have sought class certification, state officials suggested.
“While we are disappointed in this particular ruling, the Supreme Court did not opine on the merits of our law protecting children from sexualized adult live performances,” Julia Friedland, deputy press secretary for Gov. Ron DeSantis, told the Florida Record in an email. “This case is still pending appeal at the 11th Circuit, and we expect this law to be upheld on the merits.”
Kavanaugh’s statement seemed to suggest the state’s application was premature and stressed that Florida’s application does not raise any of the core free-speech issues in the underlying case.
“Therefore, the court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment,” Kavanaugh said.
Judge Presnell concluded that because of the ill-defined terms in the law, including “lewd conduct” or “lewd exhibition of prosthetic genitals or breasts,” the plaintiff cannot know with certainty whether its shows would be covered under the new statute.
“(The) plaintiff, informed by the vague statutory language and (the) defendant’s enforcement activity against (Orlando’s Plaza Live venue), has been forced to chill its regular practice of opening many of its performances to all ages – at an economic loss,” Presnell concluded in the district court opinion.
Attorneys for Hamburger Mary’s said the restaurant has been staging drag shows for 15 years without any negative incidents.