In a defining legal confrontation over free speech and child protection, a federal appeals court has nullified Florida's law aimed at preventing minors from attending performances deemed sexually explicit, including drag shows. On Tuesday, the 11th U.S. Circuit Court of Appeals, through a 2-1 decision, upheld a preliminary injunction against the enforcement of SB 1438, a law passed in 2023.
The law, which was signed by Governor Ron DeSantis and championed by conservative state officials, was intended to shield children from adult live performances that could feature nudity or simulated sexual conduct. Though the legislation did not specifically name drag shows, state leaders have articulated their concerns regarding such events involving drag queens.
The court's majority, comprising Judges Robin Rosenbaum and Nancy Abudu, penned an 81-page opinion criticizing the law's vague language, suggesting it could inadvertently criminalize constitutionally protected forms of expression. "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," they wrote, as reported by the Washington Examiner. This sentiment echoes the foundational principle that specificity is crucial when the state aims to restrict speech.
This legal challenge originated from Hamburger Mary's, a restaurant chain with an Orlando branch known for hosting drag shows advertised as "family-friendly." The establishment contested the claim that their performances were obscene or inappropriate for minors, arguing that the law infringed on their right to free expression.
U.S. District Judge Gregory Presnell, who issued the initial injunction in 2023, pointed out that Florida already possesses laws against obscene content. He expressed concerns that SB 1438 was selectively targeting drag performers, stating, "It appears that this statute is specifically designed to suppress the speech of drag queen performers."
Proponents of the law, including Republican state Sen. Clay Yarborough, the bill's sponsor, have consistently defended it as a necessary safeguard for children. "Parents have the right to raise their children as they see fit, and government intervention should be a last resort," Yarborough argued, according to First Coast News. He highlighted the gravity of ensuring businesses or government entities within the state do not admit minors to performances intended solely for adults.
In disagreement with the court's ruling, Governor DeSantis condemned the decision as "Dead wrong," reinforcing his stance that drag shows inappropriately "sexualize" children. Judge Gerald Tjoflat, in a vigorous dissent, accused the majority of overreaching and neglecting tools meant to respect state authority and avoid unnecessary constitutional rulings.
Addressing concerns that invalidating the law would expose children to adult content, Presnell underscored that Florida law already allows minors to watch R-rated films in theaters when accompanied by a parent or guardian. The ruling, while blocking the law for the interim, signals the continuation of a broader constitutional debate over the language and intent of the legislation. Legal analysts anticipate the possibility of this case ascending to the Supreme Court, should Florida officials elect to persist in this legal battle.
