Drag claims 1st Amendment wins in Florida, Utah

  • by John Ferrannini, Assistant Editor
  • Wednesday July 12, 2023
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Members of Southern Utah Drag Stars won a court case and held their family-friendly drag party June 30, the last day of Pride Month. Photo: From Drag Sisters' FB page
Members of Southern Utah Drag Stars won a court case and held their family-friendly drag party June 30, the last day of Pride Month. Photo: From Drag Sisters' FB page

The federal courts have given preliminary victories to the drag community in recent weeks in separate lawsuits against a Utah city and the state of Florida where judges ruled their anti-drag moves violate the First Amendment to the United States Constitution.

As the Bay Area Reporter previously reported last month, in Utah, the Southern Utah Drag Stars filed suit against the city of St. George on May 23 after the municipality denied it a special events permit for a family-friendly drag show at J.C. Snow Park.

In Florida, Hamburger Mary's Orlando filed suit May 22 against the state and Republican Governor Ron DeSantis after he signed Senate Bill 1438, which restricts children from attending "lewd" performances. DeSantis is now a GOP presidential candidate.


A resolution in the Utah case came June 16. Judge David Nuffer of the United States District Court for the District of Utah issued a preliminary injunction that the City of St. George had to allow Mitski Avalōx and Southern Utah Drag Stars to host a show at J.C. Snow Park after they'd been denied a permit.

"Public spaces are not private spaces," Nuffer ruled. "Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression."

The drag show was held June 30. In attendance was Aaron Welcher, the communications director for the American Civil Liberties Union of Utah, he wrote in an email. Welcher did not return a request for additional comment by press time.

Valentina De Fex, senior staff attorney for the ACLU of Utah, hailed the decision as a major victory for drag and the LGBTQ community across the country.

"Quite simply, drag is protected by the First Amendment. The city of St. George's selective and discriminatory refusal to permit a family-friendly drag event impermissibly silenced LGBTQ+ Utahns and violated our client's constitutional rights," De Fex stated in a news release. "This ruling is a win for not just our client ... but for all people in St. George and throughout Utah.

We are grateful for the court's decisive action to disallow attempts by city officials to implement subjective viewpoints of what they deem appropriate to silence and erase LGBTQIA+ and gender diverse communities throughout the state," De Fax added.

Welcher stated Avalōx was not available for comment for last month's report; the B.A.R. asked Welcher July 7 to let it know if Avalōx would be available for comment now but did not hear back.


Meanwhile, in the Sunshine State, Judge Gregory Presnell of the U.S. District Court for the Middle District of Florida, Orlando Division, issued a preliminary injunction June 24 that blocked the enforcement of Senate Bill 1438, which had been signed by DeSantis in May.

SB 1438 punishes venues that admit children to performances that involve "lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts," which critics charge is language designed to target drag performances. A similar law in Tennessee was declared unconstitutional last month.

DeSantis' administration has gone after the liquor licenses of some drag-hosting venues for being a "public nuisance," the B.A.R. has reported.

Hamburger Mary's Orlando filed suit against the state and DeSantis. The drag-themed restaurant claims that after DeSantis signed the adult performances law on May 17, the restaurant told customers that children won't be allowed to attend any of its drag shows and its bookings fell 20%. In its complaint, the restaurant argued the law was "unconstitutionally vague" — which is what University of San Francisco law professor Luke Boso told the B.A.R. last month about these types of codes.

Presnell seemed to agree. The word "vague" appears over a dozen times in his ruling. He ruled that it's likely the Florida law did not take into consideration that lewdness, legally, has for decades referred to "hard core sexual conduct" as per the Supreme Court in Miller v. California obscenity criteria.

In Miller v. California, decided by the liberal Warren court in 1971, the justices ruled 5-4 that obscene materials are not protected by the First Amendment, but lessened the definition of "obscene material."

For something to be obscene, and thus not covered by the First Amendment, it must appeal to the "prurient interest," that is, sexual appetites; lack "serious literary, artistic, political or scientific value;" and describe "in a patently offensive way, sexual conduct specifically defined by the applicable state law."

All three of these prongs have to be satisfied for expression to be legally obscene.

The Florida judge determined in his preliminary injunction that the test had not been met.

"The Act's focus on 'prosthetic or imitation genitals or breasts' raises a host of other concerns not simply answered — what are the implications for cancer survivors with prosthetic genitals or breasts?" Presnell asked in his ruling. "It is this vague language — dangerously susceptible to standardless, overbroad enforcement which could sweep up substantial protected speech — which ... renders Plaintiff's claim likely to succeed on the merits."

The injunction will only last until a full trial can be heard on the matter in the federal district court.

Russell K. Robinson, a professor of law at UC Berkeley, told the B.A.R. that the Florida law attempts to go beyond what the state can legally ban.

"Nudity in front of children — that's already banned under state law," Robinson said. "This is trying to go further, to prevent children from being around when drag is performed. ... The First Amendment is supposed to give people expansive freedom to express themselves as long as it is not obscene. The concept of lewdness doesn't track what the courts have decided is obscene. Drag performances are not considered obscene under standard legal principles."

Robinson said that prior restraints on speech need to be specific to withstand constitutional scrutiny.

"The judge held that the law is vague and subjects organizers of drag shows to uncertainty in terms of whether their performance would be deemed lewd and banned under state law," Robinson said. "Under the First Amendment people who speak are supposed to not be chilled and have fair notice as to what's illegal in advance and this law is too vague in talking about prosthetic breasts and genitals in ways that would create uncertainty."

DeSantis and Hamburger Mary's Orlando did not return requests for comment for this report, though they have given statements. The restaurant posted on Facebook to "encourage people to read the court's injunction, every page, and understand the case, and put the politics and fear-mongering aside."

DeSantis press secretary Jeremy Redfern told NPR that the court's decision was "dead wrong."

"It's constitutional to prevent the sexualization of children by limiting access to adult live performances," he stated.

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