The Volokh Conspiracy
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Naples (Florida) Restrictions on Drag Performance at Pride Fest Likely Unconstitutional
Today's long decision by Senior Judge John Steele (M.D. Fla.) in Naples Pride, Inc. v. City of Naples so holds (to oversimplify matters slightly). First, the court concludes the drag performance is symbolic expression that's presumptively protected by the First Amendment:
To determine whether conduct is inherently expressive, "we ask whether [a] reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message." In making that determination, a court looks to the context and circumstances surrounding the conduct. For example, the Supreme Court has found that nudity is not protected by the First Amendment, but that nude dancing is protected expressive conduct….
For purposes of this preliminary injunction motion, the Court finds that Naples Pride's drag performance is symbolic conduct that is inherently expressive and constitutes "speech" within the meaning of the First Amendment. The circumstances surrounding the drag performance would lead a reasonable person to view the performance as conveying some sort of message. The performance is part of a festival conducted in a month associated with LBGTQ+ issues. Pridefest and the drag performance raise matters of concern to the community, as shown by the vigorous debate before the City Council regarding this year's Permit and those of prior years.
Those who weighed in on the proposed drag performance understood that their disagreement was with the performance's inherently expressive meaning. Some strenuously oppose the performance's symbolic message, others are ardently in favor of it. The City Council made its permitting decision after considering the expressive meaning conveyed by the anticipated drag performance. The very nature of the restrictions imposed by the City Council — the indoor-only and age restrictions and a portion of the increased security fees — indicate that the performance's message was a motivation for the restrictions….
The court then concludes that ordering the performance to be moved indoors was likely unconstitutional:
Naples Pride argues that its drag performance has been shunted to a tiny building alongside Cambier Park because of public opposition to the performance's expressive content. The City responds that the indoor restriction is not content based, but driven by realistic security concerns that are proper matters of consideration for local government. Experience, the possible impact of protesters, potential and credible threats, and trends in violence worldwide may all properly be considered, the City asserts, and in this case, justify the level of security planned for Pridefest. The City also asserts that it "must plan for every contingency," given the potential number of the attendees.
The City disputes the contention that it has given way to a "heckler's veto," and asserts that it has properly engaged in "target hardening." The City argues that even if strict scrutiny applies, the location condition survives because it is a reasonable time, place, and manner restriction. Finally, the City contends that "[a]s a matter of common sense and logic, an outdoor performance is less secure and more susceptible to a violence incident than an indoor one."
Naples Pride does not dispute that safety and security are proper government interests, and indeed, agrees that the City should provide adequate levels of security. Naples Pride is not against the use of security measures, but objects to concealing the performance in a small building due to the City's concerns that an outdoor performance may inflame others who are exercising their First Amendment rights to protest the drag performance. The City's valid concerns of "best practices" and "target hardening" in the name of security cannot overcome the First Amendment.
The City's requirement of an indoor location for the drag performance, even if a good faith attempt to mitigate risk, is clearly viewpoint and content based. It is the perceived expressive conduct of the drag performance, and the potential hostile reaction it may engender in others, that caused the City to restrict the drag performance to the inside of a small building, and to disallow a performance at Cambier Park's bandshell….
The court likewise concludes that the age restriction mandate was likely unconstitutional as well, partly because the performance was likely to be "devoid of any nudity, explicit content, or adult themes":
[T]he age restriction is [likewise] clearly viewpoint and content based. The City argues that the age restriction is based on security needs caused by the anticipated reaction of others to the drag performance's content, while Amici argue that the age restriction is justified by the impropriety of the performers' conduct for viewers, especially children. A restriction imposed on speech deemed immoral or scandalous is clearly a viewpoint-based restriction.
The City argues that the age restriction is justified by its concern that the City, its agents, and/or employees may be prosecuted under the Florida Drag Law if the permit is granted without an age restriction…. [But] there is no uncertainty about the law's current lack of binding effect: the statute has been declared unconstitutional; the official charged with enforcing it has been enjoined from doing so; and both the Eleventh Circuit and Supreme Court have so far declined to stay or modify the injunction. Furthermore, nothing in the record establishes that the anticipated "family friendly" drag performance meets the requirements of the statute or justifies a prior restraint….
As to the security fee, the court reasons:
The Court agrees with the City that it may charge a fee for the actual burden on public services arising from Pridefest. The Court also agrees that the City may properly consider the professional judgments of police and law enforcement officials about the need for security measures.
The City asserts that the imposition of the security fee in this case "is rational, logical, and viewpoint neutral" and has been tailored to the location and logistics of Pridefest after considering "the complex logistics, expected attendance, the history of Plaintiff's desire for security, Plaintiff's concern for attendees, anticipated protestors, strain on City resources, and the continued need to provide essential public safety services to the public at large[.]" The City rejects the idea that the amount of the security fee constitutes a "heckler's veto" because that concept contemplates silencing speech in its entirety, which has not occurred here. Additionally, the City asserts that there will be no hostile crowd, and hence no hecklers, within the festival because as a limited private forum, Pridefest "can exclude anyone they please that they disagree with."
The City also asserts that the sharp security-fee increases between 2022 to 2024 — $3,867, $5313.75, and $15,520 — are attributable to content-neutral factors. First, the City approved a new contract with NPD on July 1, 2023, which raised rates for off-duty law enforcement personnel who work special events. Second, in 2024, the City abandoned its prior policy of writing off the cost of SWAT deployments for largeevent organizers, as it was no longer fiscally responsible to do so. The City thus asserts that invoices charged to other large events, like Cars on 5th, show similar security-fee increases. Indeed, the February 8, 2025, estimate provided to Cars on 5th has an almost identical security-fee of $33,070, which covers the cost of 31 personnel.
The Court finds that Naples Pride is substantially likely to show that a portion of the security fee estimate is viewpoint and content based. Even so, the Court declines to grant a preliminary injunction as to the estimate because such an injunction would exceed what is needed at this time. It is undisputed that Naples Pride and the public are entitled to security at Pridefest, and that some security fee can be properly assessed.
The precise amount subject to dispute cannot be accurately computed at this time. It will be necessary to determine what portion of the security fee is attributable to concerns over other individuals' exercises of First Amendment rights (e.g., protesters) and may not be shifted to Naples Pride. However, no amount is due until after Pridefest, and even then, only 60 days after the City invoices Naples Pride. If at that point, the parties cannot agree to a delay of the payment due date until after this matter is litigated, the Court may consider by motion a stay of the payment deadline….
Seems generally correct to me.
