The U.S. Supreme Court recently halted Florida’s “Protection of Children Act,” a law designed to prevent children from attending sexually explicit live performances, including drag shows.
This ruling, coming after a federal district court sided with an Orlando drag bar, Hamburger Mary’s, marks a significant setback in efforts to safeguard minors from potentially harmful content.
SB 1438, signed by Governor Ron DeSantis, criminalizes allowing children to witness sexually explicit live performances.
The state’s Protection of Children Act will fine or revoke the licenses of venues that “knowingly” admit children to “adult live performances.”
The law 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.”
Orlando drag eatery Hamburger Mary’s immediately challenge the law after it was passed. The establishment argued that the measure infringed upon First Amendment rights, a contention that was initially upheld by a federal district court which ruled that the law likely violated constitutional protections of free speech.
The restaurant holds drag brunches and claims that the law is hurting their business. They argue that the decision on whether a performance is fitting for the underage audience should reside with the parents or guardians, not the state.
In October, the state asked the Supreme Court that the injunction only apply to Hamburger Mary’s while the case continues.
According to a report from Tampa Free Press, Florida Department of Business and Professional Regulation Secretary Melanie Griffin has sent an emergency application to Justice Clarence Thomas requesting that the law be reinstated while the lawsuit in the state plays out.
“Florida is now unable to enforce its statue at all, to the detriment of Florida’s children and the State’s sovereign prerogative to protect them from harm,” Moody argued.
“Hamburger Mary’s has not alleged, much less proven, that application of the Protection of Children Act to others in the State of Florida will cause actual or imminent injury to Hamburger Mary’s itself. It was a serious error for the district court nonetheless to enjoin the statute as it may apply to the rest of the world,” the state’s court filings say.
Justice Thomas could act on the request alone or refer it to the full court for consideration, according to a report from The Hill.
On Thursday, Florida’s request to the Supreme Court to limit the lower court’s injunction solely to Hamburger Mary’s was rejected in a 6-to-3 vote, with Justices Thomas, Alito, and Gorsuch dissenting. Justices Kavanaugh and Barrett clarified that Florida’s failure to raise the First Amendment issue in the case means the court’s decision does not reflect a stance on whether the law breaches First Amendment rights.
According to NPR, “until the Eleventh Circuit hears the case fully, the law will not be enforced in the state.”
Attorneys for Gov. Ron DeSantis’ administration told a federal appeals court that a law aimed at preventing children from attending drag shows is tailored to the state’s “unquestioned interest in protecting children from exposure to obscenity.”
After suffering a setback at the U.S. Supreme Court, attorneys for Gov. Ron DeSantis’ administration on Friday told a federal appeals court that a law aimed at preventing children from attending drag shows is tailored to the state’s “unquestioned interest in protecting children from exposure to obscenity.”
The state, in a 73-page brief, argued that the 11th U.S. Circuit Court of Appeals should overturn a June ruling by U.S. District Judge Gregory Presnell that blocked enforcement of the law statewide. Presnell said the law, approved this spring by the Republican-led Legislature and DeSantis, violated First Amendment rights.
Attorneys representing Department of Business and Professional Regulation Secretary Melanie Griffin, the named defendant in the case, disputed in the brief that the law violates the First Amendment and said it is narrowly focused on the ages of children.
“Because of this feature, the act does not unnecessarily deny or impede access of adults to communications that are constitutionally protected for them,” said the brief, filed by lawyers in Attorney General Ashley Moody’s office. “The act proscribes only the knowing exposure of a child to unprotected speech — speech that is obscene for children of that age. It is therefore entirely consistent with the First Amendment.”
Last July 2022, the Florida Department of Business and Professional Regulation served a lawsuit to the owners of a bar in Miami that hosts drag shows for children.
The footage of a drag queen attempting to entertain a toddler while parading around topless in the R House bar in Wynwood, Florida began circulating across the internet prompting the state to launch an investigation.
The video featuring the bare-chested transgender performer and child was shared on TikTok by a user named “nononie” who gleamed over the lewd performance.
“Children belong at drag shows!!!! Children deserve to see fun & expression & freedom.”
The bar’s menu is laced with promotion of its drag show and offers a $30 “kids brunch” that includes a meal, a soft drink “and of course our fabulous show.”
R House bar has 21 days to respond to the state’s complaint. If the bar’s activity is determined to violate state and local statutes, it will be revoked of its liquor license, a penalty that would put it out of business.
“The sexualized nature of the Brunch performances is pervasive,’” DBPR’s states in the complaint while citing multiple instances in which children were present to observe the performances of nude drag queens. “Florida Statutes, prohibits unlawful exposure of sexual organs. Specifically, it provides that ‘exposing or exhibiting … sexual organs in public or on private premises of another… in a vulgar or indecent manner’ is unlawful.’”
Also in December 2022, the Florida Department of Business and Professional Regulation announced that they are investigating the “Drag Queen Christmas” all-ages drag show.
“Exposing children to sexually explicit activity is a crime in Florida, and such action violates the Department’s licensing standards for operating a business and holding a liquor license,” the department said.