Federal judge temporarily blocks Florida law he says is aimed at drag performers

State lawyers argued Florida’s “Protection of Children Act” does not target drag shows.
The Hamburger Mary's in downtown Orlando on Tuesday, June 13, 2023.
The Hamburger Mary's in downtown Orlando on Tuesday, June 13, 2023. [ RICARDO RAMIREZ BUXEDA | Orlando Sentinel ]
Published June 23, 2023|Updated June 23, 2023

ORLANDO — A federal judge on Friday temporarily blocked a Florida law that he says is aimed at limiting the rights of drag performers.

U.S. District Judge Gregory Presnell of Orlando wrote in his order that “this statute is specifically designed to suppress the speech of drag queen performers.”

Presnell’s ruling quoted the words of the bill’s sponsor in the House, state Rep. Randy Fine, who said the bill “will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’”

Fine, a Republican from Brevard County, could not be reached for comment.

The court battle was initiated by the Hamburger Mary’s restaurant in Orlando over a law that contains penalties for any venue allowing children into a sexually explicit “adult live performance.” The law includes potential first-degree misdemeanor charges for violators.

“Of course, it’s constitutional to prevent the sexualization of children by limiting access to adult live performances,” said Jeremy Redfern, a spokesman for Gov. Ron DeSantis, who signed the law in May. “We believe the judge’s opinion is dead wrong and look forward to prevailing on appeal.”

Hamburger Mary’s filed a lawsuit in May against DeSantis, the state and Melanie Griffin, secretary of Florida’s Department of Business and Professional Regulation. DeSantis and the state have since been dropped as defendants, with Griffin remaining.

The downtown restaurant’s lawsuit argued the law would have a “chilling effect on the First Amendment rights of the citizens of Florida.”

Related: How would proposed Florida law affect drag shows at St. Pete Pride?

Hamburger Mary’s, which opened in 2008, has hosted drag performances that include bingo, trivia and comedy. After the law was signed, the restaurant restricted children from drag shows and then lost 20% of its bookings, according to the lawsuit.

Presnell’s order prevents the state agency from enforcing the law pending the outcome of a trial. He also denied the state’s motion to dismiss the lawsuit.

Hamburger Mary’s is represented by Brice Timmons, the same civil rights attorney who represented the Friends of George’s theater company in a case that led to a federal judge ruling a Tennessee law restricting drag shows was unconstitutional.

“It’s wonderful that yet one more court has vindicated the rights of people, especially drag queens, to express themselves,” Timmons said Friday.

Timmons said the owners of Hamburger Mary’s “just changed the world for queer people everywhere.”

“The judge today protected the rights of every single person in the United States to be who they are and to express themselves in ways that don’t hurt other people,” Timmons said.

In his order, Presnell expressed concerns about vagueness in the law, particularly lines about “lewd conduct” and “lewd exposure of prosthetic or imitation genitals or breasts.”

“Not only does the statute fail to define these terms, but one must resort to state jury instructions to find any definition of ‘lewd conduct,’” Presnell wrote.

Presnell, an appointee of President Bill Clinton, questioned what the line about “prosthetic or imitation genitals or breasts” would mean for cancer survivors.

“It is this vague language — dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech — which distinguishes [the new Florida law] and renders Plaintiff’s claim likely to succeed on the merits,” Presnell wrote.

State lawyers had argued Florida’s “Protection of Children Act” does not target drag shows.

“The Act does not prevent establishments from continuing to stage ‘adult live performances’ or deny access by adults to those performances,” the state’s argument read. “It merely requires the exclusion of children for whom the performance would not be age-appropriate. And contrary to (Hamburger Mary’s) implication, the Act does not target drag shows; by its terms, it protects children from exposure to any kind of sexually explicit live performance that is obscene for the age of the child present.”

But that claim received pushback from Timmons and Presnell at a June 6 hearing, with the part of the law that read “lewd exposure of prosthetic or imitation genitals or breasts” being called out.

Timmons said there were only two people who would have prosthetic breasts: women who had undergone mastectomies or drag performers.

Sentinel staff writer Steve Lemongello contributed to this report.