The U.S. Supreme Court on Thursday denied a request to allow Florida to resume enforcing a law that bans minors from attending drag shows, among other so-called “adult live performances.”
The opinion stems from ongoing litigation brought by the owners of queer restaurant chain Hamburger Mary’s, who argue that Florida’s law effectively outlawing drag shows that can be viewed by a minor violates their freedom of speech. Businesses who violate the law as written could be fined and have their liquor licenses suspended or revoked. District court Judge Gregory Presnell granted a temporary injunction against state enforcement of the law in June, ruling it was “vague and overbroad,” represents a chilling effect on speech, and is unlikely to hold up under scrutiny. An Eleventh Circuit appeals court allowed the injunction to remain in place in October.
In response, Florida officials asked the Supreme Court to stay the injunction and effectively reverse Presnell’s decision. The state argued that the district court overstepped its authority, because lower court injunctions can’t apply to anyone other than the litigants named in the case. But in an opinion authored by Justice Brett Kavanaugh and joined by Amy Coney Barrett, the Court declined to take up that argument on Thursday, because Florida’s lawyers had not made a complete enough case to justify granting a stay.
The opinion notes that even though the case itself rests on the fundamentals of U.S. free speech law, the state’s petition focused exclusively on the scope of Presnell’s injunction. But because free speech cases have unique rules about what relief a court may grant, the justices decided that the whole situation was too messy to issue a decision that would — like all Supreme Court decisions — have had larger effects on how other cases are decided.
Because of that discrepancy, the case is “an imperfect vehicle” to consider the constitutional question Florida relied on, the Court wrote, and “it is appropriate for the Court to deny the application.”
LGBTQ+ rights organizations hailed the Court’s decision this week, with statewide advocacy group Equality Florida writing on X, formerly Twitter, that the law is “unconstitutional censorship targeting our community.” Brice Timmons, a lawyer for Hamburger Mary’s, affirmed that reading in comments to CNN on Thursday. “At this point in time, [the law] is blocked from enforcement because all speech restrictions are presumed unconstitutional,” Timmons said, and “Florida has not shown why this carve out for the LGBTQ community is special.”
Still, some legal experts urged caution. Because the opinion is largely focused on the structure of Florida’s argument rather than the case itself, it doesn’t indicate how the Court would rule if it eventually hears an appeal — especially because Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all noted that they would have granted Florida’s stay request despite the other justices’ concerns.
“Given the focus on procedural issues in the separate statement from Justices Kavanaugh and Barrett, it’s hard to read any broader implications for anti-drag laws out of the Court’s refusal to un-block Florida’s,” CNN’s Supreme Court analyst Steve Vladeck told the network on Thursday. “The only thing that seems clear is that three justices are already sympathetic to such laws. Whether there are two more votes to uphold them very much remains to be seen.”