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Ahead of his ill-fated presidential campaign, Gov. Ron DeSantis invested quite a bit of time expressing his contempt for drag shows, so it didn’t come as much of a surprise a couple of years ago when the Florida Republican signed a measure empowering the state to penalize businesses that allow minors to attend drag performances.
Soon after, a federal court blocked the state from enforcing the anti-drag law, concluding that Florida already had laws against obscene performances. “Rather, this statute is specifically designed to suppress the speech of drag queen performers,” U.S. District Court Judge Gregory A. Presnell wrote.
DeSantis denounced the injunction as “dead wrong” and vowed to appeal. As the Miami-area NBC affiliate reported, that hasn’t turned out well for the governor.
Describing the law as ‘substantially overbroad,’ a federal appeals court Tuesday upheld a preliminary injunction blocking a 2023 Florida law aimed at preventing children from attending drag shows. A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, backed the Central Florida venue Hamburger Mary’s in a First Amendment challenge to the law.
The majority opinion said that “by providing only vague guidance as to which performances it prohibits, the act (the law) wields a shotgun when the First Amendment allows a scalpel at most.”
“The Constitution demands specificity when the state restricts speech,” Judges Robin Rosenbaum and Nancy Abudu explained. “Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene.’ An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead. Yet Florida’s Senate Bill 1438 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”
Time will tell whether DeSantis bothers to take his chances with yet another appeal, but let’s not forget that the governor already tried once to get the U.S. Supreme Court to undo the district court’s injunction. That didn’t work, even if Justices Clarence Thomas, Samuel Alito and Neil Gorsuch publicly dissented at the time.