Appeals Court Tells State Of Florida It Still Can’t Enforce Its Unconstitutional Anti-Drag Show Law

Free Speech

from the still-in-the-wrong,-Florida dept

Florida’s legislative bigots have already been told twice. I guess they need to hear a third time.

The state passed a law that outlawed drag shows, resulting in it being sued by a venue that often hosted drag shows, Hamburger Mary’s. The lawsuit claimed the new law violated several rights, first and foremost being the First.

The district court agreed. It granted an injunction to Hamburger Mary in June, blocking the law from being enforced while the court sorted out the (un)constitutionality. The state tried to argue this wasn’t about protected speech, but rather just a modification of an existing obscenity law that had never been found unconstitutional. The court disagreed, using the government’s own words against it.

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.’ ”

Since the law was plainly aimed at suppressing a very particular form of speech, the court said the state couldn’t use it against anyone. The state immediately tried to enforce it. Or, at least, it tried to talk the court into letting it enforce it against anyone who wasn’t this specific plaintiff.

Again, the government lost. The court said the injunction applied to the law, not to the entity seeking the injunction. Any attempt to enforce it against anyone in the state of Florida would be a violation of the injunction. The court shot down the state’s terrible arguments with this paragraph:

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.

Not willing to be deterred by successive losses, the state immediately appealed the injunction, asking the Eleventh Circuit Appeals Court to temporarily stay the injunction until the case was fully settled.

Ron DeSantis’ government is now a three-time loser. The Eleventh Circuit ruling [PDF] says the injunction stays in place for all the reasons listed by the lower court as well as a few of its own assertions and affirmations.

Once again, the state (represented here by Secretary of the Florida Department of Business and Professional Regulation Melanie Griffin) is asking to be allowed to enforce this law against anyone but Hamburger Mary’s. And, once again, Griffin and the government she represents are being told, “No.” The law is simply too bad to be allowed to be enforced.

The problem for Secretary Griffin is that statutes which are unconstitutionally overbroad are “properly subject to facial attack.” Secretary of State of Md. v. Joseph H. Munro, Inc., 467 U.S. 947, 968 (1984) (rejecting argument that state statute found to be overbroad should not “str[uck] down on its face”). As a result, a successful overbreadth challenge “suffices to invalidate all enforcement of th[e] law ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the threat or deterrence to constitutionally protected expression.’” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (emphasis in original) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). The Supreme Court has “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—specially when the overbroad statute imposes criminal sanctions.”

That’s just the law of the land, Melanie. You know, the First Amendment and several decades of Supreme Court precedent. Protecting free speech is something the entire government is supposed to do, not just the federal judiciary.

And Griffin seemingly knows this. The appeal brief contains the state’s acceptance of the lower court’s take on the law that led to it issuing an injunction. And yet, the state still thinks these determinations should only apply to the entity suing it, not others in the state similarly situated. If the state is going to make that much of a concession, it boggles the mind to think it still has any legal footing to ask for even a partial lifting of the injunction.

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.

About as open-shut as it gets. There’s a dissent attached, though. It’s written by Judge Andrew Brasher, a Trump nominee who only had six months of federal court experience before being handed a job at the Appeals Court. As is to be expected, Brasher is no fan of equal rights or people who aren’t as white/straight as he is.

His dissent ridiculously asserts a state should be allowed to enforce a “facially unconstitutional” law simply because the plaintiff in the case admitted its own harms would be remedied if (duh) the law was never enforced against it. Apparently Brasher believes the rest of the state should be subjected to an unconstitutional law and the harms it causes up until the point those affected by an unlawful law decide to start suing about it. It’s an insane argument and one only a guy who doesn’t like drag shows or drag show performers could whip up to tack onto a straightforward ruling the states the obvious: a likely unconstitutional law can’t be enforced against anyone because it’s (double duh) unconstitutional.

Fortunately, that’s just the dissent. The injunction stays in place and the lower court’s ruling is kept intact. At the end of this, the Florida legislature will either need to scrap the law entirely or come up with a far more creative way to oppress people certain legislators just don’t care for.

Filed Under: 11th circuit, 1st amendment, drag shows, florida, free speech, hb 1423