DeSantis administration appeals ruling against drag ban to US Supreme Court

The U.S. Supreme Court. (Washington Blade file photo by Michael Key)

Republican Florida Gov. Ron DeSantis’ administration filed an emergency stay motion Oct. 24 to the U.S. Supreme Court in an effort to enforce restrictions on drag shows in the state.

Two weeks ago the Atlanta-based 11th U.S. Circuit Court of Appeals upheld a lower court ruling that the Protection of Children Act posed a threat to constitutionally-protected free speech and expression and affirmed that the block of the law would stand for the entire state of Florida.

In the 167-page filing to the Supreme Court, Florida Solicitor General Henry Whitaker wrote referring the the decision upheld by the 11th Circuit: ”As long as the district court’s preliminary injunction remains in place, Florida is powerless to enforce a law its elected representatives have enacted for the protection of its children.”

Florida had been the site of several enforcement threats against drag events, prompting some Pride celebrations to cancel their parades out of concern over the drag laws being weaponized against them.

In June, U.S. District Judge Gregory Presnell in his 24-page ruling noted: “The state claims that this statute seeks to protect children generally from obscene live performances. However, as explained [in court filings], Florida already has statutes that provide such protection.”

The 11th Circuit in its ruling upholding Presnell wrote: “There are also important practical reasons to let the injunction stand pending a full trial on the merits. First, the potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the government in the interim can enforce obscenity laws already on the books.”

The emergency application was submitted to Justice Clarence Thomas, who presides over appeals from the 11th Circuit.

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