DeSantis' anti-LGBTQ laws run afoul of 1st Amendment, attorneys say

  • by John Ferrannini, Assistant Editor
  • Wednesday May 31, 2023
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Florida Governor and Republican presidential candidate Ron DeSantis has made culture issues a focal point of his campaign. Photo: AP
Florida Governor and Republican presidential candidate Ron DeSantis has made culture issues a focal point of his campaign. Photo: AP

Attorneys are questioning the constitutionality of some of the anti-LGBTQ laws signed by Republican Florida Governor Ron DeSantis just before he launched his campaign for the GOP presidential nomination.

Michael Trung Nguyen, a gay man and attorney in San Francisco who is a former board chair of the GLBTQ+ Asian Pacific Alliance, or GAPA, also performs in drag as Juicy Liu. Nguyen told the Bay Area Reporter that in his opinion, laws targeting drag performances or limiting discussion of homosexuality in schools aren't being passed in order to withstand constitutional scrutiny. The First Amendment to the U.S. Constitution gives the country one of the world's strongest protections for free expression.

"The laws are on our side," Nguyen said. "Drag is not a crime. Drag is an art form."

DeSantis launched his campaign May 24 with Twitter CEO Elon Musk in a glitch-filled talk on Twitter Spaces. He currently trails former President Donald Trump in the fight for the GOP nomination, 56%-25%, according to the latest Quinnipiac poll.

DeSantis has said he wants to "make America Florida" as he touts his record, which includes a six-week abortion ban, a ban on COVID vaccine and mask mandates, blocking an African American study program, and a new immigration law penalizing businesses if they're found to be violating a number of mandates.

The presidential candidate has had an eye toward the queer community in particular, however. Last year, he shepherded the "Don't Say Gay" legislation into law, banning discussion of homosexuality or gender identity in schools through the third grade.

The DeSantis administration has subsequently gone after several venues for hosting drag performances, as the B.A.R. previously reported; banned gender-affirming care for trans youth; and extended the "Don't Say Gay" rule through the 12th grade.

Most recently, DeSantis signed a slate of bills making the Sunshine State — home of Key West, Orlando, and Miami Beach — perhaps the most restrictive for LGBTQ people in the nation. These include a license to discriminate in health care; criminal penalties for gender-affirming care for trans youth; a bathroom bill that requires people to use facilities in public buildings in accordance with their sex assigned at birth; statutory expansion of Don't Say Gay; forbidding of public funds for gender-affirming care for people of any age; and an "adult live performances" law that's even more stringent than one passed in Tennessee earlier this year. (That law doesn't specifically mention drag but drag artists are wary of it.)

Anti-drag bills similar

Luke Boso, a professor at the University of San Francisco School of Law, included a question on the constitutional implications of the Tennessee drag ban on the final exam of his constitutional law class in May.

"I used Tennessee's version of their drag ban and asked them what First Amendment implications there were," Boso said. "Florida's ban is pretty similar to Tennessee's but it's a little more specific in the way it defines 'adult live performance' than what Tennessee's does by focusing more on depictions of nudity, sexual conduct and sexual activities, and it specifically is trying to work its way into established Supreme Court precedent on obscenity law in a way that Tennessee's doesn't necessarily do."

That precedent was set forth in Miller v. California, decided by the liberal Warren court in 1971. In the Miller case, the court 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.

"I think that there's a couple of potential problems with Florida's law," Boso said. "The first [prong of the Miller test] is probably more easily satisfied, because it's a local standard over whether it meets a prurient interest — a shameful or morbid interest in sexuality or excretion. In Florida there probably are locales that would consider some drag performances to meet that standard. The second is more straightforward — is this something the state Legislature has defined as offensive by statute, which is what this is trying to do."

It's with the third prong of the Miller test that the law runs into problems, he said.

"The third runs into trouble because it's a national standard," Boso said. "It's asking, 'does the performance lack serious literary, artistic or political value?' Drag is a lot of ways inherently political given that it's a commentary on gender norms and expectations. Some drag could be done in a non-political way, but I think the fact that drag is so much a part of the national conversation about gender and sexuality means it has become more political and, as a result, it's hard for the statute to survive the third Miller prong."

The second issue the law faces is the chilling effect on expression.

"When the government seeks people to get permission from the government before they express themselves that's a prior restraint and there are more stringent standards with that," Boso said. "There needs to be clear criteria and important reasons why. It has to leave reasonable alternative channels of communication available."

That chilling effect seems to be working, however.

The tension and the "adult live performances" law — which critics say could be used in an attempt to criminalize drag — has led some Pride festivities to be canceled in Florida, such as in Tampa and Port St. Lucie.

"Florida has recently passed a number of laws that target the LGBTQIA+ community," Pride organizers in the community of St. Cloud stated. "These laws have created a climate of fear and hostility for LGBTQIA+ people in Florida. We believe that holding an LGBTQIA+ event in this environment would put our community at risk."

GAPA's Nguyen agreed.

"It's part of a boogeyman the far right wants to create in the LGBT community and also just really to try to silence us, to ban our expression and ban us from public life," Nguyen said.

Attorney and drag artist Michael Trung Nguyen. Photo: Courtesy Michael Trung Nguyen  

Families want to leave
The current environment has led some LGBTQ people to leave the state, as the B.A.R. reported. Statewide LGBTQ rights group Equality Florida was joined by other civil rights groups such as the NAACP in issuing a travel advisory warning against visiting, as the B.A.R. also reported.

Seventeen percent of LGBTQ parents had started taking steps to leave Florida, according to a 2022 UCLA Williams Institute study, and 56% had considered doing so.

Even more of an infringement on the First Amendment is the Don't Say Gay law that catapulted DeSantis' national profile, leading to an ongoing, protracted fight with The Walt Disney Co. — the state's largest private employer — after it expressed disapproval.

The law's vagueness represents a considerable prior restraint, Boso said. Lawyers advised school administrators in Florida's Orange County against allowing teachers to place photographs of their same-sex partners at their desks, and against wearing rainbow articles of clothing, according to The Hill.

"People don't know what they can or can't say about their own partners, or if a child comes out to them in their capacity as a teacher," he said. "I think that's part of the point."

Don Hayden, a gay Florida attorney, and a partner at Mark Migdal and Hayden, agreed.

"So, senior year in high school you can't talk about gay issues," Hayden said, referring to the Florida Board of Education's recent expansion of the Don't Say Gay. "Makes it difficult for a gay teacher to talk to his students."

Nonetheless, U.S. District Judge Allen Winsor in Tallahassee threw out a lawsuit in February, saying the plaintiffs lacked standing to sue because the law had not been enforced against them. The plaintiffs have appealed to the 11th U.S. Circuit Court of Appeals. A similar suit in Orlando was dismissed last fall.

"We're in a very different time down here," Hayden told the B.A.R. "It's a sorry state; I hate to say it. We are not even a purple state — we are a red, red state."

Florida attorney Don Hayden. Photo: Courtesy MMH  

'He'll trample on anyone'
DeSantis first won the governorship in 2018 by less than half a percentage point against Democratic opponent Andrew Gillum, who subsequently faced a corruption trial in which the jury was hung on most charges, which were subsequently dropped.

Gillum, who is married, came out as bisexual in 2020, six months after being found inebriated by police in a Miami Beach hotel with a male sex worker.

DeSantis, 44, a Republican former congressmember, became a national figure with his more laissez-faire approach to COVID-19 restrictions during the height of the pandemic. According to the U.S. Census, Florida is No. 1 in net migration. A Democratic voter registration edge has been flipped to a 330,000 GOP advantage, and DeSantis beat former Republican Governor Charlie Crist (who previously changed parties and was running as a Democrat) in last year's governor's race by 19 points — including with a victory in historically liberal Miami-Dade County.

Democrats "didn't get the vote out, [and] didn't have the right candidates," Hayden said.

Hayden said the rest of the country needs to take heed at DeSantis' consolidation of power.

"He's been able to create, with the supermajority in the Legislature, he's been able to create and provoke fear and headlines — what he wants for his presidential bid," he said.

"He'll trample on anyone to get the attention of the base he's trying to attract, and that includes trans youth, it includes drag queens, it includes gay teachers, it includes kids who feel afraid to even talk about their sexuality to their teachers or to their peers," Hayden added. "And he doesn't care. In his mind, he doesn't think we have the same rights as everyone else. Be aware, because what I've seen [are] over 300 bills around the country that are copycat bills of what we've seen in Florida."

University of San Francisco's Boso said that there's no guarantee that present court interpretations of the Constitution will hold, either.

"In the same way we saw Dobbs last summer, many people were surprised," Boso said, referring to the Supreme Court decision that eliminated abortion as a constitutional right. "Folks who study constitutional law saw the writing on the wall. This is a very different court. A 6-3 conservative majority does have the power to reinterpret or overrule or disregard past precedent, so I do suspect that's one of the hopes."

DeSantis' press office did not respond to a request for comment for this report.

Updated, 6/6/23: This article has been corrected to state that Michael Nguyen is a former board chair of GAPA.

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