SCOTUS refuses to hear Florida appeal of anti-drag law

Hamburger Mary’s Sunday Broadway Brunch in June 2018. (Photo by Jake Stevens)

The U.S. Supreme Court on Nov. 16 rejected Florida’s emergency request to overturn two lower federal court rulings that blocked its law that targeted drag shows.

In a ruling by the U.S. 11th Circuit Court of Appeals in Atlanta last month, the court upheld an injunction issued by a U.S. District Court judge in Tallahassee last June that the Florida drag ban law was unconstitutionally vague and overbroad and that will not be allowed to take effect.

Florida’s law, dubbed the Protection of Children Act, makes it a crime to admit a child to an “adult live performance” that the state deems sexually explicit. Signed into law by Florida Gov. Ron DeSantis (R) in May, the legislation makes it a misdemeanor offense. 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.

The Hill reported three of the high court’s conservatives — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — publicly dissented and voted to revive the law.

Two other conservatives — Justices Brett Kavanaugh and Amy Coney Barrett — voted with the majority to rule against Florida, but the duo indicated their votes don’t signify whether they believe the law is constitutional.

In the ruling from the 11th Circuit, the appellate justices cited major precedent over blocking overly-broad laws targeting freedom of speech, such as this section of Ashcroft v. ACLU, a first amendment lawsuit challenging portions of the Child Online Protection Act:

“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.”

Prior to the 11th Circuit ruling, the Florida drag ban had done significant harm in the state. Treasure Coast Pride Fest cancelled their pride parade, citing the new law, and also made it so that in person pride events would be 21-and-up. Tampa Pride likewise cancelled a large celebration. Several drag organizers expressed concern over how the law could be weaponized against them. Now, some of those questions are resolved, at least for the time being.

Florida isn’t alone in having its drag law halted from being enforced. This year, courts have put a stop to comparable laws in several other states. Days before Helena was set to host a Pride event, Montana’s anti-drag law was blocked. Tennessee’s drag law was similarly deemed unconstitutional and faced another block when a district attorney attempted to enforce it anyway in Blount County. Texas’ prohibition on drag was also blocked as likely unconstitutional. However, in North Texas, Judge Kacsmaryk permitted a local college to implement a drag ban within his jurisdiction.

The Hill also reported the case now returns to the 11th U.S. Circuit Court of Appeals for the full appeal. After a final ruling, the case could ultimately return to the justices.

Kavanaugh, in a statement joined by Barrett, said Florida’s request didn’t meet one of the criteria the justices look for in an emergency application: whether the Supreme Court has a “reasonable probability” of eventually agreeing to hear the issue on the merits.

“The State has not made that showing here,” Kavanaugh wrote. 

But Kavanaugh cautioned that Florida’s emergency request dealt with the scope of the lower court’s injunction, not whether the law itself is constitutional.

“Florida’s stay application to this Court does not raise that First Amendment issue. Therefore, the Court’s denial of the stay indicates nothing about our view on whether Florida’s new law violates the First Amendment,” he wrote.

Additional reporting by Erin Reed and The Hill.

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