Banning Drag Shows is Unconstitutional

That's according to an opinion from the 11th Circuit Court of Appeals upholding a lower court injunction in response to Florida's drag ban.

Today, the extremely conservative 11th Circuit issued a 127-page opinion stating that Florida’s ban on allowing children to see drag performances is a violation of the First Amendment. Granted, the three-judge panel that issued the opinion includes two Obama appointees and one from Gerald Ford, and the opinion was 2-1. The Gerald Ford guy dissented on the grounds that the Florida law is not vague or overbroad, and that the federal courts can’t wield Article III power because the Florida courts haven’t had a chance to interpret the law:

But before Florida’s courts had any chance to interpret the law, the District Court issued a sweeping injunction, holding that the statute was likely unconstitutionally vague and overbroad. On appeal of the injunction, we had two good options: we could apply ordinary tools of statutory construction to read the statute narrowly and avoid unnecessary constitutional conflict, or we could certify the unsettled state-law questions to the Florida Supreme Court, allowing the state’s highest court to speak first.

But the other two judges say that Hamburger Mary’s - the plaintiff in this case - 1) has standing, 2) Hamburger Mary’s relocation doesn’t moot their claim, 3) that Hamburger Mary’s is likely to succeed on the merits because the Florida law is vague, and 4) state-wide relief is warranted. Basically, they agree with the lower federal court’s injunction pending the outcome of the litigation.

1. STANDING

The court says that step one in the judicial order of operations is that they must determine the plaintiffs have standing to ask for an injunction. There are three things a plaintiff has to show to establish standing: “(1) . . . an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

The court concludes that it’s reasonable to believe Hamburger Mary’s would self-censor based on potential punishment, especially since the rules are so vague. Florida argues that Hamburger Mary’s doesn’t intend to participate in anything that’s against the law because they say their family-friendly performances contain no lewd or sexually explicit content. And if they say they aren’t going to do anything wrong, they have nothing to worry about. And if they have nothing to worry about, they don’t have standing. Florida says that no reasonable person would think that what they do at Hamburger Mary’s would violate the drag ban, and the fact that Hamburger Mary’s had to cancel their family friendly shows is the equivalent of “flopping” - or faking an injury.

So Florida passes a law that could result in a $5000 fine and up to one year in prison for each instance if you violate it, then they say Hamburger Mary’s is faking injury when they cancel shows.

The reason that is ridiculous is because Florida has a history of over-applying the idea of lewdness to things:

As we explain in greater detail below, the Act’s vague terms like “depicts . . . lewd conduct” and “value for the age of the child present” make the law’s scope ambiguous and potentially inclusive of even Hamburger Mary’s “family-friendly” drag performances. After all, no less than the federal government has recently indicated its intent to police firm “sex-based distinctions,” including those related to people’s “appearance.” The possibility that [Florida] might view a gender-bending but chaste drag performance as “lewd” and lacking “value” is far from an unreasonable conclusion.

The court even gives examples of Florida confounding the definition of lewd:

First, in at least one instance, [Florida] alleged that a drag show featured “lewd” acts despite its own inspector’s determination to the contrary. FDBPR (Florida Department of Business and Professional Regulation) leadership need not agree with its own inspector’s conclusion. But this internal disagreement points to the malleability of the speech statutes regulating “lewd” conduct (like the Act) that the FDBPR enforces.

Second, FDBPR’s prior enforcement actions reinforce a reasonable observer’s sense that when the Department watches drag shows, it is likely to see something it thinks lewd, regardless of its actual content. Twice, FDBPR alleged a particular drag performance featured “lewd, vulgar, and indecent displays” including “graphic depictions of childbirth and/or abortion.” But based on FDBPR’s photographs (provided as exhibits), the offending depiction seems to have been a performance by a drag artist named “Jimbo.” One of Jimbo’s signature acts involves donning Marcel Marceau-like makeup, a prosthetic stomach and backside, and a stretchy, full-body white suit (leaving no skin or prosthetic skin visible other than the face).

Jimbo dances and prances onstage, lip-syncing to Björk’s cover of Betty Hutton’s 1951 song “It’s Oh So Quiet,” before undoing a hidden zipper on the stomach’s underside and pulling from within . . . a pile of baloney. Perhaps some may consider Jimbo’s baloney birth a bit odd (and hammy in every sense of the word). But FDBPR seems to think the act “outrage[s] the sense of public decency,” is “nasty, suggestive, and indecent,” or is “obscene,” even for adults.

If FDBPR believes Jimbo’s baloney birth was legally problematic even before the Act, it is reasonable for Hamburger Mary’s to fear that FDBPR might enforce the new law—presumably passed to expand the range of prohibited performances—against even tame drag shows.

2. MOOTNESS

Florida tried to argue that because Hamburger Mary’s moved from Orlando to Kissimmee during the litigation, that their request for a preliminary injunction is moot. The court disagreed based on Supreme Court precedent:

In cases involving businesses that pause operations but may resume them, courts take a common-sense approach to evaluating mootness. The business’s own actions and the concreteness of its reopening plans carry significant weight. Future injuries may be speculative when a plaintiff expresses a “desire” to go back into business but shows “no clear plans” to do so. But a company that files for bankruptcy yet shows its ability and intent to resume operations after a corporate reorganization retains an interest in an ongoing suit (even when the reopening depends on the suit’s outcome).

3. MERITS

The court finds that Hamburger Mary’s is likely to succeed on the merits - which is a requirement for the lower court to issue the preliminary junction that the appeals court is upholding.

After careful review of the Act and with the benefit of oral argument, we conclude that Hamburger Mary’s facial challenge is likely to succeed. As we explain, the Act is substantially overbroad. Two provisions—a vague restriction on prohibitions of certain “depict[ions of] . . . lewd conduct” and a fine-grained yet ambiguous standard of what speech is appropriate for which children—make it so. The provisions’ vagueness threatens a broad range of protected speech, even if the law has some permissible applications at its core. These provisions turn the Act into an “I know it when I see it” law. But the Constitution requires more clarity.

4. RELIEF

Florida says that if the court decides an injunction is proper, it should only apply to Hamburger Mary’s, not everyone. The 11th Circuit says:

The Supreme Court has long recognized an “expansive remedy” for First Amendment overbreadth challenges for the same reasons behind the overbreadth doctrine: a fear that the threat of enforcement will chill protected speech.

In fact, the Supreme Court denied the Secretary’s later application for a partial stay on the same grounds. But given that nationwide injunctions are nevertheless acceptable to “protect similarly situated nonparties,” statewide injunctions, which reach only within our Court’s geographic jurisdiction and do not silence other federal courts who might otherwise speak on the matter, enjoy an even stronger claim to permissibility in appropriate circumstances.

…whether or not a plaintiff brings an as-applied challenge, a court may evaluate a law’s constitutionality on its face. And as we have explained, when a court holds a law facially unconstitutional, broad-based relief may follow. The district court’s ruling is therefore affirmed.

And there you have it. I imagine Florida will ask for an en banc rehearing, or appeal to the Supreme Court. I’ll keep you posted!

~AG

Jefferee Woo/Tampa Bay Times via ZUMA Press via Newscom