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A federal judge will weigh a 'drag show' legal fight in Florida

Florida Gov. Ron DeSantis answers questions from the media in the Florida Cabinet following his State of the State address during a joint session of the Senate and House of Representatives, Tuesday, March 7, 2023, at the state Capitol in Tallahassee. DeSantis' administration is moving to unilaterally forbid classroom instruction on sexual orientation and gender identity in all grades, expanding the controversial law critics call “Don't Say Gay” as the Republican governor continues a focus on cultural issues ahead of his expected presidential run.
Phil Sears
Florida Gov. Ron DeSantis answers questions from the media in the Florida Cabinet following his State of the State address during a joint session of the Senate and House of Representatives on March 7, 2023.

Arguing that the measure does not “target” drag shows, Gov. Ron DeSantis’ administration is urging a federal judge to toss out a constitutional challenge to a new law that bars children from attending “adult live performances.”

State lawyers filed arguments Friday as U.S. District Judge Gregory Presnell prepares to hold a hearing Tuesday on a motion by operators of the Orlando restaurant Hamburger Mary’s for a temporary restraining order and preliminary injunction against the law, which DeSantis signed last month.

Hamburger Mary’s, which has presented drag shows for 15 years, including what its motion described as “family friendly” performances, contends that the law violates First Amendment rights. In part, the motion said the law “prohibits protected speech based on the identity of the speaker” and is vague and overbroad.

“Since plaintiffs have been engaging in this type of speech for many years without incident, granting the TRO (temporary restraining order) will cause no harm other than potential dissatisfaction by some legislators and the governor who are under no obligation to attend the shows,” the motion, filed May 23, said. “Simply stated, there is no public interest in preventing children from seeing drag shows. There is no leap to be taken from a drag show performance to exposing children to lewd or improper displays.”

But in a 25-page response filed Friday, lawyers in Attorney General Ashley Moody’s office argued Presnell should dismiss the case or at least reject the motion, which Presnell will treat as a motion for a preliminary injunction. They wrote that the law bars children from attending “adult live performances,” not specifically drag shows, and that its definition of the performances tracks obscenity standards that have been upheld by the U.S. Supreme Court.

“The act (law) does not prevent establishments from continuing to stage ‘adult live performances’ or deny access by adults to those performances,” the state response said. “It merely requires the exclusion of children for whom the performance would not be age-appropriate. And contrary to HM’s (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.”

The Republican-controlled Legislature passed the measure after the DeSantis administration cracked down on venues in South Florida and Central Florida where children attended drag shows. As an example, the administration targeted the liquor license of the Hyatt Regency Miami hotel for hosting a “Drag Queen Christmas” event in December.

The law also came as legislators in Florida and other Republican-controlled states passed numerous bills aimed at transgender people. That included bills designed to prevent doctors from providing treatments such as hormone therapy and puberty blockers to transgender minors and to prevent transgender men and women from using bathrooms that don’t line up with their sex assigned at birth.

On Friday, a federal judge struck down a new Tennessee law that sought to prevent “adult cabaret entertainment” performances that could be seen by minors. U.S. District Judge Thomas Parker ruled on First Amendment grounds.

In the document filed Friday in the Florida case, lawyers in Moody’s office tried to draw a distinction between the Florida and Tennessee laws.

“The (Florida) act prohibits the knowing exposure of children to ‘adult live performances’ no matter who is leading or performing it,” the document said. “And the objective purpose, again, is not to target drag queens but to protect children from exposure to age-inappropriate, sexually explicit live performances. The act thus differs materially from the Tennessee statute … which applied to ‘adult cabaret entertainment’ performed by ‘entertainers like topless dancers, strippers, male or female impersonators but not others.’”

But the Hamburger Mary’s motion said Florida already had laws on the books preventing minors from being exposed to “lewd, sexually explicit, obscene, vulgar or indecent displays.” The motion said such displays do not occur when children are allowed to attend performances at the restaurant.

“It is unquestionable that the state’s intent is to stop children from attending drag shows at restaurants, performances, bars and any other events,” the motion said. “As such, the statute is viewpoint discriminatory because it targets drag queens.”

The law defines “adult live performances,” in part, as “any show, exhibition, or other presentation in front of a live audience which, in whole or in part, depicts or simulates nudity, sexual conduct, sexual excitement or specific sexual activities, … lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

It prohibits local governments from issuing public permits for events that could expose children to the targeted activities. Also, it allows state regulators to suspend or revoke licenses of restaurants, bars and other venues that violate the law.

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Jim Saunders is the Executive Editor of The News Service Of Florida.