What's at Stake
On January 24, 2024, the ACLU and ACLU of Florida filed an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit supporting HM Florida-ORL, which operates the restaurant and bar Hamburger Mary’s in Orlando, in its lawsuit alleging that a Florida law infringes upon minors’ First Amendment rights by prohibiting them from attending drag performances.
This case arises out of Florida’s attempt to prohibit minors from viewing drag shows that officials might deem “lewd” in some way, without adhering to the accepted constitutional test for obscenity as to minors. Florida’s SB 1438 (the “drag ban”) directly infringes upon minors’ First Amendment rights by purporting to broadly proscribe their ability to view drag performances that, though they might appear shocking or inappropriate in the eye of a government censor, are not constitutionally obscene for them.
In May 2023, plaintiff’s HM Florida ORL LLC, which operates the drag-themed restaurant and bar Hamburger Mary’s in Orlando, sued to enjoin enforcement of the drag ban on the grounds that it violates the First Amendment because it restricts protected speech based on the identity of the speaker and is impermissibly vague and overbroad. The next month, a judge in the Middle District of Florida granted plaintiff’s motion for a preliminary injunction, declaring it substantially likely that HM Florida ORL LLC would succeed on the merits of its First Amendment claims. The opinion explained that Florida’s drag ban was a facially content-based regulation on speech that likely failed strict scrutiny because the state had overshot the least restrictive means necessary to achieve its purported goal. The district court cited a wide range of conduct that might constitute a “live performance” under the drag ban and identified several other statutory that are wanting for clarification. Moreover, the court held that the drag ban’s failure to define key phrases such as “lewd conduct” likely rendered it void for vagueness.
Defendants challenged the injunction and sought to have it stayed pending resolution of their appeal. First the U.S. Court of Appeals for the Eleventh Circuit, then the U.S. Supreme Court, denied defendants’ request, leaving the injunction in place. On January 29, 2024, the ACLU and ACLU of Florida filed an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit, emphasizing the drag ban’s vagueness and overbreadth issues and urging affirmance of the district court’s preliminary injunction.