The Volokh Conspiracy
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Naples (Florida) Restrictions on Drag Performance at Pride Fest Can Take Effect
An Eleventh Circuit panel (by a 2-1 vote) issues a stay of the preliminary injunction that the district court issued in Naples Pride's favor.
From today's Eleventh Circuit decision in Naples Pride, Inc. v. City of Naples by Judges Robert Luck and Andrew Brasher:
In 2023 and 2024, Naples Pride, Inc. applied for a permit under the City of Naples, Florida's special event ordinance to hold a drag performance at a city park. Both years, the city granted a permit but with two conditions: first, that the drag performance had to be held indoors, and second, that attendance had to be limited to adults eighteen years or older. The performance went on with those two conditions.
The same thing happened in 2025. Naples Pride applied for a permit to hold the same drag performance at the same city park on June 7, and, in January 2025, the city granted the same permit with the same two conditions. The only difference this time was that, in April 2025, Naples Pride sued the city, claiming that it violated the group's First Amendment free speech rights by adding the two permit conditions under the special event ordinance. Naples Pride moved to preliminarily enjoin the city from enforcing the two conditions, and the district court granted the motion. The district court concluded that: the drag performance was protected expression under the First Amendment; the event was a traditional public forum; and the two permit conditions were viewpoint- and content-based restrictions.
The city now moves to stay the preliminary injunction. "Under the traditional standard for a stay, we consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." But "when the balance of equities weighs heavily in favor of granting the stay—we relax the likely-to-succeed-on-the- merits requirement. In that scenario, the stay may be granted upon a lesser showing of a substantial case on the merits."
Here, for three reasons, the city has a substantial case on the merits that the district court abused its discretion in preliminarily enjoining the permit conditions. First, "[a] delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm," which is a "require[d]" element for "[a] preliminary injunction." Naples Pride delayed seeking an injunction by more than "only a few months." The city added the conditions to Naples Pride's permit in 2023—two years ago—yet Naples Pride did not move to preliminarily enjoin the permit conditions until April 2025. Even after the two conditions were added by the city in January 2025 for this year's drag performance, Naples Pride still delayed in moving for a preliminary injunction by "a few months." The group filed its motion in April 2025.
Second, the city has a substantial case that the two permit conditions were not imposed based on Naples Pride's viewpoint. A viewpoint-based condition is one that "targets not merely a subject matter, but particular views taken by speakers on a subject." Here, the two conditions were not targeted at Naples Pride's views expressed through drag performances. As Naples Pride explained when the permit conditions were initially added, they were "necessary" "due to safety concerns" and to "put the safety of [its] guests first." Naples Pride "d[id] not believe" the police department's security-related concerns—which were the reasons for the city's permit conditions—resulted from "discriminat[ion]."
The dissent responds, quoting Kennedy v. Bremerton School District (2022), that the First Amendment does not allow a heckler's veto to proscribe protected activity "based on 'perceptions' or 'discomfort.'" But the city did not add the two permit conditions because of perceptions or discomfort. The conditions were added, as Naples Pride agreed, because they were "necessary" to address "safety concerns" and to ensure "the safety of [its] guests." In any event, the two conditions did not veto the drag performance. The performance went on as scheduled in 2023 and 2024, and will this year too.
Third, the city has a substantial case on the merits that the special event is a limited public forum. A "limited public forum" has one of "two features": "whether the forum is limited to a specific class of speakers, and whether the forum is limited to speech on specific topics." "If either (or both) is present, we have a limited public forum." Here, the drag performance has both. Like the "city council meetings" in McDonough, the special event is limited to a specific topic—"a celebrat[ion of] the LGBTQ+ community" to "express themselves without fear"—and it is limited to a class of speakers, musicians, and performers selected by the event organizer.
In a limited public forum, the city's "restrictions on speech must not discriminate against speech on the basis of viewpoint and must be reasonable in light of the purpose served by the forum." Here, as we explained, the two permit conditions were not added based on Naples Pride's viewpoint. And they were reasonable in light of the special event. As Naples Pride agreed when the two conditions were first imposed, they were "necessary" "due to safety concerns" and to "put the safety of [its] guests first."
{The dissent says that Naples Pride is likely to succeed on the merits because we, in a different case, affirmed an order enjoining Florida Statute section 827.11's "lewd conduct" restriction. See HM Fla.-ORL, LLC v. Governor of Fla. (11th Cir. 2025). But this case is about the city's special event ordinance as applied to Naples Pride's special event. It has nothing to do with section 827.11, and our decision in HM Fla.-ORL says nothing about whether the district court abused its discretion by granting a preliminary injunction here.}
The remaining stay factors weigh heavily in favor of granting a stay. "[T]he inability to enforce its duly enacted [ordinance] clearly inflicts irreparable harm on the [city]." Naples Pride will not be substantially injured by a stay because it can hold the drag performance under the same two permit conditions that applied to the last two performances, in 2023 and 2024. And the public has an interest in the enforcement of the city's ordinance and the safety of residents and visitors in the city….
Judge Nancy Abudu dissented:
The district court's order granting a preliminary injunction against the City of Naples from enforcing a content and viewpoint-based restriction against Naples Pride in violation of the organization's First Amendment rights should not be disturbed by the issuance of a stay. For the very well-stated reasons the district court set forth in its own order denying the City's motion for a stay, so too should this Court….
As the district court concluded, the City's requirements that the performance be held only inside and that only those 18 years old and over can attend are undeniably viewpoint and content- based "and thus, unconstitutional, whether the forum is a traditional or limited public forum." … "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."
Second, a panel of this Court already ruled that the "lewd conduct" restriction on speech in Fla. Stat. § 827.11 is likely unconstitutionally overbroad, even as to minors. HM Fla.-ORL. Unless and until HM Fla.-ORL is vacated or reversed, that decision remains a valid basis for the district court's conclusion that Naples Pride is likely to succeed on the merits of its First Amendment claims.
Further, while threats of violence should be taken seriously, courts also have been extremely cautious about not elevating a "heckler's veto" into an extra factor of consideration when determining whether a gathering for the public should be so severely clamped down that the expression is unduly hampered. See Kennedy (noting in the Establishment Clause context, the First Amendment does not include "a 'modified heckler's veto, in which religious activity can be proscribed' based on 'perceptions' or 'discomfort'").
Moreover, as the district court highlighted, the Naples Police Department explicitly confirmed that officers would be able to accommodate the performance at an outdoor venue, especially given it confirmed additional out-of-town officers were standing by in case their help was needed. For these reasons, the City failed to make a "strong" showing of a likelihood of success on the merits.
As to the second factor, irreparable injury, the City failed to satisfy its burden by simply asserting that it suffers an injury any time it is being enjoined. Importantly, as the district court stated, "no such harm is shown where an underlying ordinance is 'unconstitutional.'" Overall, Naples Pride's First Amendment rights are being violated, which is a substantial deprivation of its fundamental right, not the City's.
As to the last two factors—harm to the opposing party and the public interest—"neither the government nor the public has any legitimate interest in enforcing an unconstitutional ordinance." The City asserts Naples Pride will not be substantially injured and bases this argument on the timing of the organization's suit. The district court properly addressed and rejected this argument; Naples Pride has shown substantial injury that was not undermined by the timing of its suit given the organization's reasonable pre-suit conduct.
Finally, granting the City's motion for a stay is not in the public's interest, especially when reminded that the "public" includes all people, not just those like the proposed intervenors who adamantly oppose drag performances even when they can opt not to watch them. In addition, relief to Naples Pride "is definitionally incomplete if" that relief "forces [it] to continue holding [its] First Amendment rights in abeyance."
I tend to agree with the dissent as to the restriction being a viewpoint-based and therefore unconstitutional heckler's veto, but I'm not completely confident as to the result because I'm not sure what to make of the majority's argument related to the delay by Naples Pride and Naples Pride's statements related to "safety concerns."
Andrew William Justin Dickman, Matthew Rodrick McConnell, and Odelsa Flores-Dickman (Dickman Law Firm) and David Jadon represent defendants.
