SCOTUS UPDATE - 11/16/2023 - Florida Gets Stuffed


"Certainty is an illusion ..."
Honoured Citizen
Back in May, the State of Florida enacted a bill purportedly aiming to "protect children" from ostensibly dangerous "adult live performances" - which of course includes the incredibly dangerous and exotic drag show. Exposing a child to such a performance is actually codified in the law as an abuse of children. For what should be fairly obvious reasons, the law has been challenged in the federal courts as violating the First Amendment rights of performers, producers, distributors, and viewers of such shows. Recognizing the overwhelming likelihood that a First Amendment challenge would succeed, the federal district court in Orlando overseeing the case issued a preliminary injunction barring the law from taking effect - and issued the injunction so that it applies not just to the restaurant that filed the challenge in the first place, but to everybody else in Florida that otherwise would be impacted by the law.

While the underlying First Amendment challenge is winding its way through the court system, Florida sought a stay from the Eleventh Circuit Court of Appeals of the preliminary injunction, seeking to at least have the law barring children from "adult live performances" go into effect as against everyone in the state who is not a party to the original lawsuit. The Eleventh Circuit denied the stay, and Florida appealed the denial the Supreme Court, which today issued an order by a 6-3 split upholding the denial of the stay. Justices Thomas, Alito, and Gorsuch indicated that they would have granted the stay but they did not file a dissent. However, on behalf of himself and Justice Barrett, Justice Kavanaugh did issue a "Statement" explaining their vote in favor of upholding the stay.

Essentially, the reasoning was entirely procedural. Florida did not challenge the underlying First Amendment issue in its application for a stay, as the underlying issue is still in the legal system. Instead, Florida limited itself to challenging the broad application of the injunction to apply to non-parties to the litigation. There is actually a very interesting question that is unresolved as to whether District Court judges can -- or should -- have the power to issue such injunctions. In recent years, conservatives judges (especially from Texas) have issued sweeping nationwide injunctions against the federal government to try to stop federal laws from taking effect. It's a stunning power grab in many instances on the part of judges who often seem to be looking to implement or impact policy rather than stick to serving as judges. In other words, in this case most of us probably agree with the judge's decision to issue this injunction - but the shoe is often on the other political foot, and reigning in judges to stop the lowest level of Federal Court judge from issuing sweeping injunctions is not necessarily a bad thing.

Nonetheless, Justice Kavanaugh makes clear that this is not a particularly good case on which to test that question, because the fact that First Amendment rights are wrapped up in the issues makes a straight forward challenge to the judge's power to issue an injunction more complicated. To NOT enjoin a law that impacts free speech rights means that the rights of ordinary citizens may be denied during the pendency of litigation because they weren't the ones who files suit. As a result, while broad injunctions involving non-parties to litigation may not always be appropriate, it just might be the case that First Amendment cases represent a significant exception. In other words, this case is not an ideal one to settle the issue on, and the Court would be unlikely to grant certiorari on the issue presented in the stay application. Generally speaking, the Court does not issue a stay unless the issue in the stay request is likely to be granted cert, hence the underlying reason for the denial.

This is likely far from the last word on this issue, but the Statement from Kavanaugh gave an interesting peek into the mechanics of ruling on an application for a stay, and I thought it therefore deserved a writeup. I can't wait until we get some real opinions issued this term (quite commonly - but not always - there are a couple released in December), but until then I have to settle for oral arguments and these occasional opinions or statements issued with orders!