Florida attempted to defend its anti-drag law at the U.S. Court of Appeals for the Eleventh Circuit on Wednesday, but the effort appeared likely to fail.

The law, passed in 2023, is currently blocked by a Florida district court judge from being enforced statewide — a ruling in a case brought by the Orlando Hamburger Mary’s restaurant. Both the Eleventh Circuit and U.S. Supreme Court rejected Florida’s request that it be allowed to enforce the law during the appeal.

The state’s appeal moved forward, and two of the three judges on the panel that heard 30 minutes of arguments Wednesday in the appeal appeared to be skeptical of the law’s constitutionality.

Nate Forrester, from the Florida Attorney General’s Office, tried to focus in his argument for the state on whether the restaurant that held regular drag shows before the law went into effect has standing to challenge the law. He was, however, quickly asked several questions about whether language in the law is unclear.

“Maybe you can tell us what ‘lewd’ means,” Judge Robin Rosenbaum, an Obama appointee, asked Forrester, prompting him to say that it would obviously include something akin to an X-rated movie.

When Rosenbaum asked him if it covered anything more than that, he said it could and was an “age-variable standard” — eventually resorted to telling the panel, “I think everyone has a sense of what the word ‘lewd’ means.”

Judge Nancy Abudu, a Biden appointee, also peppered him with questions about the terms in the law.

Melissa Stewart, representing Hamburger Mary’s, immediately picked up on that, focusing on the merits of the vagueness challenge that the restaurant brought to the court.

“The statute employs broad, undefined terms,“ she said, noting that “it implements a dynamic obscenity standard … that makes compliance practically impossible.”

This is the fundamental problem with these laws.

They are written in such a way that one could, potentially, enforce them narrowly — and the state uses that possibility to fight challenges, both as to standing and on the merits, but saying that the entities challenging the law aren’t actually at risk of violating it. Notably, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit tossed out a challenge to Tennessee’s anti-drag law on a standing argument this summer, which the full appeals court recently refused to reconsider.

At the same time, on the enforcement end, the language in the laws is so vague that it could, just as potentially, be interpreted much more broadly — subjecting those very entities that states argue lack standing to investigations, if not enforcement efforts.

As Stewart detailed, the result is that both would-be performers and law enforcement lack clarity about what the Florida law restricts, chilling significant amounts of protected speech.

Rosenbaum and Abudu appeared to largely agree with the vagueness argument, although Abudu did ask Stewart about the breadth of the challenge.

The final judge, Judge Gerald Tjoflat, is a 94-year-old Ford appointee who originally served on the old U.S. Court of Appeals for the Fifth Circuit — which covered all of the South — until the circuits were split in 1981, at which point Tjoflat was one of the initial judges assigned to the Eleventh Circuit. (He is one of two pre-split judges still hearing cases; he is the older one.)

Tjoflat asked Stewart a question about whether the state was “prophylactically” trying to address “child abuse” concerns through passage of the law.

Stewart responded by noting that Florida has other laws, which have been “used very effectively,” to address those concerns.

DACA arguments

A panel of the U.S. Court of Appeals for the Fifth Circuit heard more than an hour of arguments on Thursday over the future of the Deferred Action for Childhood Arrivals, or DACA, program.

The panel of Judges Jerry Smith (Reagan), Edith Brown Clement (George W. Bush), and Stephen Higginson (Obama) appeared likely to at least partially uphold U.S. District Judge Andrew Hanen’s final order striking down the program nationwide — an order that he kept on hold as to current DACA recipients — but there was a possibility the panel would pull back the nationwide scope of the injunction.

As with so many cases, however, part of the future of the DACA program and this litigation will be determined by the outcome of next month’s presidential election.

There were significant questions raised in Thursday’s arguments about whether, in light of recent Supreme Court decisions, Texas even has standing to bring the litigation at all. For his part, however, Smith quickly rejected that possibility when Brian Boynton, the top lawyer in the Justice Department’s Civil Division, initially raised it.

Additionally, there was significant skepticism about the nationwide remedy that Hanen granted. “Only Texas has tried to show injury,” Boyton told Clement, when she asked about the nationwide scope of Hanen’s remedy. He went on to spend significant time discussing the reliance interests that exist regarding the DACA program, given that Texas did not sue until several years after the program went into effect.

The Biden administration also had help defending the program on Thursday, including from Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, representing DACA recipients. They were joined by Jeremy Feigenbaum, New Jersey’s solicitor general, representing New Jersey and other states supporting DACA.

Feigenbaum argued forcefully about the reliance question, highlighting how the current stay put in place by Hanen considered the reliance interests by of current DACA recipients — a fact that he said accentuated the lack of consideration by Hanen of the reliance interests when crafting the nationwide remedy itself.

“[T]he nationwide injunction simply doesn’t hold in this case,” he said, specifically as to those outside of Texas.

Texas was represented by Joseph Mazzara, who is special counsel to Texas Attorney General Ken Paxton. Mazzara previously worked as a lawyer on Donald Trump’s 2020 campaign.

In a striking moment, Higginson pressed Mazzara on whether there is any “history and tradition” of states suing in district court to block national immigration policy before the Deferred Action for Parental Accountability, or DAPA, case.

“Do you have any case before [DAPA] … stopping immigration policy nationwide?” he asked.

“No,” Mazzara responded, while insisting, “I don’t think there’s another case needed” beyond DAPA.

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