Last Tuesday, May 13, Florida Governor Ron DeSantis received another legal defeat in his attempt to ban all-ages drag show performances.
In a 2-1 decision against the anti-LGBTQ+ law, the Eleventh Circuit Court of Appeals upheld a lower court’s injunction against the law, effectively sending it back down to Florida’s Middle District to receive a full bench trial.
Appeals Court Judge Robin Rosenbaum stated in their decision that the law’s prohibition against “lewd conduct” was like a “prosecutorial skeleton key” that any state officials could use to ban speech that they consider obscene.“Florida’s S.B. 1438 takes an ‘I know it when I see it’ approach to regulating expression,” Rosenbaum wrote in the majority court decision. “The Act prohibits children’s admission to ‘live performances’ that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most.”
“The possibility that [Florida officials] might view a gender-bending but chaste drag performance as ‘lewd’ and lacking ‘value’ is far from an unreasonable conclusion,” she added.
In her dissent toward the case, Rosenbaum also noted that Miami is home to a historic, 35-foot-tall billboard for Coppertone sunscreen, which features the brand’s historic logo—“a girl, perhaps age seven, or so, with a dog pulling at her swimsuit, revealing her pale posterior and its contrast with her tanned skin.”
“Would a depiction like the Coppertone logo be ‘patently offensive’ for a five-year-old? An eight-year-old? How about a 17-year-old? We don’t know, and we don’t think the burden should be on speakers to find out,” Rosenbaum wrote.
“To be sure, Hamburger Mary’s [the restaurant whose Orlando franchise first challenged the ban in court] believes its family-friendly performances contain no ‘lewd’ or ‘sexually explicit’ content,” Judge Rosenbaum continued, referring to the plaintiff in the preliminary injunction. “But Hamburger Mary’s also makes clear that its drag shows, like almost all shows in the genre, involve performers wearing ‘clothing more conventionally worn by the other sex’ and often ‘[p]rosthetic breasts.’ And it notes that some people might consider even ‘a man in a dress’ reading to young children to violate the statute.”
Attorney Melissa Stewart, who is representing Hamburger Mary’s, a drag-themed casual-dining restaurant, said they’re thrilled the First Amendment rights of Floridians will remain protected as the case continues.
“The Court’s opinion recognizes this law for what it is; an egregiously unconstitutional attempt to censor the speech and expression of citizens,” Stewart said.