Judge pushes back on drag claim

A federal judge pushed back on attorneys for the state of Florida during a hearing Tuesday about their claim a new law does not specifically target drag performers.

U.S. District Judge Gregory Presnell did not immediately issue a ruling during Tuesday’s hearing in the case brought by the Hamburger Mary’s restaurant in Orlando but said he would as soon as possible. The hearing was originally scheduled about Hamburger Mary’s motion to temporarily block the law.

The court battle is over a state law signed in May with penalties for venues letting children into an “adult live performance” and includes potential first-degree misdemeanor charges for violators.

Hamburger Mary’s filed a lawsuit in May against Gov. Ron DeSantis, the state, and Melanie Griffin, secretary of Florida’s Department of Business and Professional Regulation.

The suit said after the law was signed the restaurant told customers children would not be allowed at drag shows and it lost 20% of its bookings. The lawsuit noted the criminal penalties and said the business could not take the chance its liquor license would be suspended.

Presnell ruled that DeSantis and the state should be dismissed as defendants, with Griffin remaining, after attorneys agreed on that at the start of Tuesday’s hearing at the Orlando federal courthouse.

Hamburger Mary’s lawsuit also argued the law would have a “chilling effect on the First Amendment rights of the citizens of Florida.”

“Hamburger Mary’s has been forced to self-censure,” said Brice Timmons, a civil rights attorney representing Hamburger Mary’s. He also represented a Memphis drag theater in a challenge against Tennessee restricting drag shows. A federal judge ruled the law was unconstitutional last week.

On Friday, state lawyers filed a motion to dismiss and asked that Hamburger Mary’s motion for a preliminary injunction be turned down.

The state argued Florida’s “Protection of Children Act” does not target drag shows.

“The Act does not prevent establishments from continuing to stage ‘adult live performances’ or deny access by adults to those performances,” the state’s argument read. “It merely requires

the exclusion of children for whom the performance would not be age-appropriate. And contrary to [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.”

But in Tuesday’s hearing, a part of the law that reads “lewd exposure of prosthetic or imitation genitals or breasts” was signaled out.

Timmons argued the prosthetic line “belies the statute’s real purpose.”

He argued there were only two people who would have prosthetic breasts: women who had undergone mastectomies or drag performers.

“This is a question that parents should answer,” Timmons said of if a child can attend a drag performance.

Presnell pressed the state’s attorney, Nathan Forrester, senior deputy solicitor general, on the law targeting drag performances.

Forrester disagreed, arguing the law might cover drag shows but is not limited to that. He added it does not have to be based on sexual identity.

Presnell raised other questions of vagueness in the law, asking about what defines a live audience and giving the example of a Father’s Day in a backyard where someone was dressing in female attire.

Timmons was optimistic after Tuesday’s hearing.

“We feel very good about it,” he said leaving the federal courthouse in downtown Orlando.