Florida’s Anti-Drag Law Loses The Big One: Supreme Court Says Block On Unconstitutional Law Can Remain In Place

If you — like Florida governor Ron DeSantis and his hateful little legislative buddies — want to oppress certain people, you’re going to have to do it on your own time. The state isn’t allowed to help you be shitty.

Florida passed an anti-drag show law earlier this year. Legislators were careful to ensure the legislation itself did not explicitly name drag shows as the target of the bill’s animus. But the legislators were not nearly as careful when debating the bill’s “merits,” as a federal court pointed out while handing drag show host Hamburger Mary’s an injunction blocking the law’s enforcement.

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.’ ”

The court said the law was unconstitutional and opined that Hamburger Mary’s was likely to succeed in its constitutional challenge of the hateful law. The state then approached the court and stated that it should still be able to enforce the law against other drag show hosts and performers in the state so long as it avoided trying to prosecute Hamburger Mary’s.

Wrong, said the district court. The injunction applies to the law, not to the plaintiff in this suit. The First Amendment covers everyone in the state of Florida, not just the one entity suing over the clearly unconstitutional law.

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 state tried again, asking the Eleventh Circuit to pretty please allow it to punish drag performers not employed or hosted by the original plaintiff, Hamburger Mary’s. No dice, said the Appeals Court.

To recap, the district court concluded that § 827.11 was likely overbroad and unconstitutional under the First Amendment, and Secretary Griffin does not take issue with that ruling in her motion for a partial stay. Given Supreme Court cases like Ashcroft and Eleventh Circuit cases like FF Cosmetics—which have affirmed preliminary injunctions barring enforcement of a statute or ordinance which is likely overbroad—Secretary Griffin has not made a substantial showing that the district court erred in crafting the preliminary injunction to prohibit her from enforcing § 827.11.

So far, the state is 0-3 when defending this truly terrible law. But that won’t stop it from extending its losing streak. It asked the Supreme Court to lift the injunction. And, despite the Supreme Court being what it is these days, it has given the state of Florida its fourth loss in a row.

The short opinion [PDF] says there’s no reason to lift the injunction, much less meddle with anything two levels of lower courts have determined to this point.

Of course, that doesn’t mean the Supreme Court isn’t compromised. Dig this intro to the three-page decision:

The application for stay presented to JUSTICE THOMAS and by him referred to the Court is denied.

JUSTICE THOMAS, JUSTICE ALITO, and JUSTICE GORSUCH would grant the application for stay.

Justice Thomas made the court take notice of this petition but only because he, along with Alito and Gorsuch, think the state of Florida should be allowed to enforce the unconstitutional law against drag performers or drag show hosts that aren’t the plaintiff in this case. This is the sort of thing Thomas will advocate for when not using shadow docket decisions to compose blog posts about his beliefs that Americans have far too many rights.

Fortunately, Thomas and his buddies are not only in the wrong, but in the minority. Florida’s attempt to undo this injunction is denied. The rest of the justices say the state isn’t exactly wrong to ask for a second pass on a ruling that blocks enforcement of a law against non-parties. But it is wrong in this particular case where the law is so obviously unconstitutional nothing but a broad injunction would prevent further violation of civil rights — a conclusion backed by plenty of precedent.

The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief. This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation. For that reason, the Court is not likely to grant certiorari on that issue in this particular case.

Not a complete shutout, but a conclusion that suggests it would take something pretty specific and special for the nation’s top court to roll back this particular injunction. The block remains in place, preventing Florida from enforcing its facially unconstitutional law until the issue is fully settled at the district level. And, given what we’ve seen from the district court so far, it seems extremely unlikely the state will walk away from this with its hideous, hateful law intact. Bigotry will have to remain the domain of ignorant individuals, at least in terms of this law.

The government has no business aiding these assholes in their irrational hatred — hatred that comes with fines, fees, and potential criminal charges attached.