Judge Pernell of M.D. Fla. issued a universal preliminary injunction barring enforcement of the state’s anti-drag law, in an action by an Orlando-based bar owner. The state sought to stay the injunction as to its universal scope; the Eleventh Circuit and SCOTUS declined, with Justice Kavanaugh (joined by Justice Barrett) agreeing with the denial because First Amendment overbreadth confuses the universality analysis.*
[*] It shouldn’t, if the Court thought carefully about what is going on with overbreadth and facial challenges. But that ship has sailed.
AG James Uthmeier has subpoened a different bar over an all-ages drag show; the subpoena demands the names of guests, employees, and performers, as well as security footage, contracts, employee schedules, and reservation logs.
In the normatively proper world pre-CASA and the descriptively proper world post-CASA, Florida is on solid legal footing. CASA cites Doran v. Salem Inn (a case involving strip clubs–we have not evolved as a society) for the proposition that government remains free to enforce the challenged statute against non-parties who violate it. Though enjoined from enforcing v. Orlando-based Hamburger Mary’s, officials are not enjoined from enforcing against Vero Beach-based Kilted Mermaid (owned by the Vero Beach mayor). The Kilted Mermaid has two options. It could attempt to join the existing suit and ask Judge Pernell to extend his injunction (which may raise some venue issues–Vero Beach is in the Southern District). Or it could bring a new lawsuit in the Southern District and use HM as persuasive authority and see what happens (this is how percolation is supposed to function).
In the actual world, Florida is violating the injunction. The injunction remains unstayed, including as to scope (even if that scope is improper post-CASA). As an entity protected by the injunction, Kilted Mermaid should be able to stop the subpoena by filing a motion to enforce. Under the collateral bar rule, Florida cannot defend the motion by arguing that the injunction is improper. It must ask the district court to modify the injunction to only protect Hamburger Mary’s in light of CASA; the court should grant that motion, unless it wants to follow Kavanaugh’s overbreadth nonsense. Florida then (perhaps) can pursue a renewed enforcement action, which Kilted Mermaid must challenge as described above.
Posted by Howard Wasserman on July 31, 2025 at 03:12 PM