The US Supreme Court declined to reinstate Florida's anti-drag law: What it means for TN

The U.S. Supreme Court declined on Nov. 16 to allow Florida officials to reinstate a recent state law that makes it a misdemeanor to allow children at drag shows, shedding light on the possible fate of similar law in Tennessee.

The Florida measure, signed into law in May, was challenged by an Orlando drag bar and subsequently blocked by a federal judge — pending trial — as a likely violation of First Amendment by a federal district court.

After appealing the block at the 11th U.S. Circuit Court of Appeals and being denied, Florida Attorney General Ashley Moody then asked the Supreme Court to intervene while the case was being litigated by limiting the district court’s halt on the law to only the Orlando bar – allowing it to be enforced everywhere else in the state.

The Supreme Court’s refusal to reinstate enforcement of the law hints at a similar uphill battle for supporters of Tennessee’s nearly identical Adult Entertainment Act, which passed in March and was quickly struck down by a federal judge in Memphis, who stated that the law was “an unconstitutional restriction on the freedom of speech.”

Tennessee Attorney General Anthony Skrmetti, who is handling the case, filed an appeal in June.

Similar to Florida, Skrmetti repeatedly stated his office's view that the ruling meant the new state was only blocked in Memphis, and that the law would still be enforced throughout the rest of the state.

In September, the Blount County District Attorney General Ryan Desmond stated his intention to enforce the controversial law against a Blount Pride event, and was quickly met with a lawsuit filed by Blount Pride members alongside the American Civil Liberties Union.

A federal judge granted the Pride group a temporary restraining order against any enforcement of the law until 21 days after a decision has been made in the Memphis case.

More: What to know after federal judge tosses out Tennessee's anti-drag law

When asked last week whether the Supreme Court’s decision in Florida had any impact on his appeal, Skrmetti declined to comment.

Here's what else there is to know about the cases.

Cases are both an issue of jurisdiction and First Amendment interpretation

The U.S. Supreme Court’s decision, penned by conservative Justice Kavanaugh, stated that the choice not to reinstate the law does not indicate whether the court thinks the law violates the First Amendment. In fact, Kavanaugh wrote, Florida didn't raise a challenge to the District Court's First Amendment analysis in its filings before the court at all.

Rather, the state’s request for intervention focused on whether the district court had the right to block the enforcement of the law throughout the state while the case is litigated, rather than just the drag bar plaintiff in the case.

Kavanaugh called Florida’s request an “imperfect vehicle” for considering such a question — especially considering the complexity of the First Amendment aspects of this particular case — adding that such a jurisdictional debate could “warrant our review in the future.”

What this could mean for Tennessee

Just like in Tennessee, the Florida law was halted shortly after its passage, with U.S. District Judge Gregory Presnell calling the law’s language “vague and overbroad,” particularly noting its lack of definition around terms such as “live performance,” “lewd conduct,” and “lewd exposure to prosthetic or imitation genitals or breasts.”

Judge Thomas Parker, a Trump-appointed federal judge in the District Court for the Western District of Tennessee who struck down Tennessee’s law, stated nearly identical reasons, including that Tennessee’s language was too broad, posed a content-based and viewpoint-based restriction on speech and was drafted with the unwritten intention of targeting one group of people.

More: Federal judge rules against TN's drag law: 5 notable First Amendment arguments in decision

In both cases, state officials supporting the laws have argued that a district court has no right to block the enforcement of a law across the whole state.

Skrmetti's office appealed the decision to block the law in the 6th U.S. Circuit Court of Appeals, which has jurisdiction over Tennessee.

Tennessee’s appeal is 'an uphill battle,' First Amendment expert says

Ken Paulson, director of the Free Speech Center at Middle Tennessee State University and a former editor-in-chief of USA Today, said the implications of the ruling on Florida’s legal battle draws attention to a common fallacy in many laws: poor drafting.

“One of the No. 1 problems with this legislation — and so many other laws — is primarily in the drafting,” he said. “When you write a poorly drafted bill that impedes the exercise of constitutional rights, it's almost always going to be struck down. This kind of legislation is too vague to withstand constitutional scrutiny.”

Paulson said that the Supreme Court’s hesitation to allow Florida to enforce their law while litigation was still pending, due to the heavy First Amendment implications of such a ruling, was in line with previous court battles.

“We have to remember that freedom of speech is almost essentially inviolate,” he said. “The government needs to recognize that anytime they want to tamper with free speech, they have to climb a mountain. You can't just channel your outrage into a 500-word piece of legislation and expect it to survive.”

A failure to survive is exactly what Paulson predicts will happen to Tennessee’s law — at least, this iteration of it.

“The same constitutional concerns (the Supreme Court) saw in the state of Florida are part and parcel of what's happening in Tennessee,” he said. “The freedom of speech protects not just what we say, but also our performances, our music, our poetry, and art…The burden to establish this as unconstitutional is very high. And if you're reading the tea leaves, you have to believe that the state of Tennessee will end up either abandoning this law, or trying to pass something that sustains a review by a court—and that will be very, very difficult. You're messing with free speech in a nation founded on free speech. Courts are not going to roll over on this.”

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham

This article originally appeared on Nashville Tennessean: Florida drag ban: SCOTUS didn't reinstate. TN may see similar outcome