Court: Injunction Blocking Florida’s Anti-Drag Law Applies To Everyone Affected By It, Not Just Venue That Sued It

A collective of assholes d/b/a the Florida legislature recently passed another very bad law.

I realize I may need to be more specific. Florida has been passing bad laws by the fistful under Governor (and presidential hopeful) Ron DeSantis. The bad ideas — all of them unconstitutional — range from regulating social media via compelled speech to (omfg) mandating text books that claim slavery was a net good for slaves.

It’s a real clusterfuck out there. It’s more Florida than Florida usually is. The extreme/extremist behavior that has turned “Florida Man” into a social media phenomenon has combined with post-Trump hatred for all things non-white heterosexual male to enable a host of performative lawmaking that allows bigots to pretend they’re on the right side of history while applauding legislators who appear to believe harnessing irrational hate is the best use of tax dollars.

Courts have been rejecting these laws as quickly as the fuckheads in Florida can slide them across the governor’s desk. But that hasn’t stemmed the flow of legislated rights violations.

Less than a month ago, a federal court blocked Florida’s anti-drag show law, ruling that it was entirely possible the affected plaintiff (Hamburger Mary’s, a frequent drag show host) would be irreparably harmed by this irrational hatred masquerading as an essential addition to Florida’s statutes.

The order blocking Florida from enforcing the law cut to the chase early in the decision, pointing out the state was only interested in regulating a very specific subset of entertainers.

This case addresses the constitutionality of Florida Statute § 827.11. The state claims that this statute seeks to protect children generally from obscene live performances. However, as explained infra, Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers. In the words of the bill’s sponsor in the House, State Representative Randy Fine: “…HB 1423…will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’ ”

No matter what the state argued in defense of the bad law, the intended effect was clear: the government wanted to punish drag performers (and their employers) for performing drag shows. While the law carefully avoided listing drag shows in the text, the intent was exposed by its supporters. And if the state really wished to protect children from seeing anything intended for adult consumption, maybe it would have amended its laws to prevent children from seeing R-rated films while accompanied by adults or perhaps at least added a clause requiring prosecutors to demonstrate that those being charged intended to expose children to these acts.

Florida isn’t done being stupid. The state’s legal team went to court to argue about the injunction. It did the regular thing — asking for the injunction to be stayed until it could be fully litigated. But it also did the dumb thing. It asked the court to only block it from enforcing the law against the plaintiff, Hamburger Mary’s, instead of everyone else Florida’s worst public servants have a hard-on for punishing.

Cue the sort of rejection the state’s lawyers are growing increasingly accustomed to:

A federal judge said Wednesday that his order blocking a Florida law targeting drag shows doesn’t just apply to the restaurant that brought the lawsuit challenging it but to other venues in the state, reiterating that the legislation championed by Gov. Ron DeSantis is likely unconstitutional.

A state agency that would enforce the law had asked U.S. District Judge Gregory Presnell to put on hold his preliminary injunction stopping the law from being enforced until a trial is held to determine its constitutionality while the state of Florida appeals the injunction.

It’s 2023 and the Associated Press still hasn’t figured out how to embed a PDF, much link to one. So, I guess I’ll do that for it. Here’s the ruling [PDF], which gently reminds the state that it is dumb and bad at law.

It’s a short order (14 pages) and by the second page, the court is already throwing shade at the state and its chosen enforcer of this terrible legislation.

On June 24, 2023, the Court entered its Amended Order granting Plaintiff’s Motion for Preliminary Injunction, finding it likely that the Act could not survive strict scrutiny because it did not employ sufficient narrowly tailored means to further the state’s compelling interest in protecting minors from obscene performances. The Court also found it likely that the language of the Act, which included terms like “lewd conduct” and “lewd exposure of prosthetic or imitation genitals or breasts,” was unconstitutionally vague and overbroad on its face. In its Order, the Court enjoined Defendant Melanie Griffin (“Defendant”), “in her official capacity as Secretary of the Florida Department of Business and Professional Regulation
[(“DBPR”)]…from instituting, maintaining, or prosecuting any enforcement proceedings under the Act.”

In other words, the Court temporarily enjoined Defendant’s enforcement of a facially unconstitutional statute. By her motion, Defendant seeks to neuter the Court’s injunction, restricting her enforcement only as to Plaintiff and leaving every other Floridian exposed to the chilling effect of this facially unconstitutional statute.

The court goes on to reiterate the points of its original order — namely, that the law was unconstitutional and that it was highly unlikely the state would be able to demonstrate it wasn’t. Then it attacks the stupid motion filed by the head of the DBPR, which claimed the injunction should still allow the state to violate the rights of people who hadn’t bothered to sue it yet.

Defendant argues that the Court does not have the authority to protect the constitutional rights of non-parties to this suit. Apart from a distinguishable unpublished decision, however, she does not point to any precedent where a court has restricted a preliminary injunction of such a broadly applicable, facially invalid restriction on First Amendment speech to only the plaintiff(s). This Act, unlike those in most of the cases cited by Defendant, has not merely been adjudged likely unconstitutional in a limited range of applications, and therefore capable of mitigation. Rather, it was found likely to be unconstitutional on its face.

Look, says the court, it appears you want to be as shitty as possible to as many people as possible. We’re not here to allow you to be shitty to everyone who hasn’t hired a lawyer yet, especially when the law is so clearly unconstitutional, it will be impossible to defend.

Plaintiff is not the only party suffering injury as a result of the passage of the Act; it has a chilling effect on all members of society who fall within its reach. Therefore, enjoining Defendant’s enforcement of the statute against any party is the appropriate remedy.

The beatdown continues a few pages later:

Defendant has presented no evidence or compelling argument that she will suffer irreparable
harm. Instead, she baldly proclaims that Florida “suffers a form of irreparable injury” any time it is enjoined from enforcing one of its statutes. See id. (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)) In Maryland, however, the Supreme Court’s statement was supported by evidence of ongoing, concrete harm to law enforcement and public safety. Defendant has presented no such support here. Her position that the state suffers irreparable harm any time it is enjoined from enforcing one of its statutes defies common sense and is not supported by any meaningful precedent.

Yep, it’s a terrible argument. But no one should expect anything less from someone being paid with tax dollars to argue in favor of being horrible to certain constituents because it makes the worst residents of a state with an already tarnished reputation more likely to re-elect terrible legislators and the political appointees those terrible legislators appoint.

The Constitution had a lot of amendments. But one leads the list. And that’s why Florida can’t be allowed to enforce this blatantly unconstitutional law against anyone, not just the first plaintiffs to file a constitutional challenge. (Emphasis in the original.)

Protecting the right to freedom of speech is the epitome of acting in the public interest. It is no accident that this freedom is enshrined in the First Amendment. This injunction protects Plaintiff’s interests, but because the statute is facially unconstitutional, the injunction necessarily must extend to protect all Floridians.

The law is still dead. The injunction lives. And those frothing for jailing people they consider to be less human than themselves will just have to wait.