Free Speech

Lawsuit argues the City selectively enforced its ordinances against a couple who painted their white fence in rainbow colors in support of the LGBTQ+ community

Florida on the Front Lines of Justice

This case challenges the Village of Palmetto Bay’s retaliation against an elected councilmember for his protected political speech. After Charlie Kirk’s death, Palmetto Bay Councilmember Steve Cody posted political satire critical of Kirk’s views on gun rights. In response, the Village Council removed Cody from a committee and rescinded related representative roles—despite acknowledging that Cody’s comments were protected by the First Amendment.

Erika Santos joined the public debate over what legacy Charlie Kirk was leaving behind in the aftermath of his public killing on September 10, 2025. In retaliation for her criticisms, Eastern Florida State College fired the grant accountant after a perfunctory “investigation”. This is the second case we have brought to combat the government’s efforts to expand its censorship power based on reactions to Kirk’s death (the first is Brown v. Young).

A 2021 Florida law generally prohibits “social media platforms” from censoring posts by or about political candidates and “journalistic enterprises.” It specifically penalizes any content moderation practices the law classifies as censorship, deplatforming, or shadowbanning of both political candidates and “journalistic enterprises.” Under the guise of “prohibiting censorship,” these laws seek to replace the private entities’ editorial voice with preferences dictated by the government. The ACLU’s position is that the government’s desire to have private speakers distribute more of any viewpoint is not a permissible basis for regulating the editorial decisions of private platforms. Choosing what not to publish and how to prioritize what is published is protected expression. On the very largest platforms, free expression values are best served if companies choose to preserve as much political speech as possible, including the speech of public figures. But, regardless of what platforms ought to permit as a matter of corporate policy, the government can’t constitutionally mandate what they ultimately choose. We filed amicus briefs in the district court (which granted a preliminary injunction on June 30, 2021), in the Eleventh Circuit (which, on May 23, 2022, affirmed in part and reversed in part the injunction), and the Supreme Court, which, on July 1, 2024, asked the Eleventh Circuit to reconsider the case under a particular standard. In August 2024, the Eleventh Circuit sent the case back to the district court, where the case is proceeding again. The plaintiffs filed an amended complaint in November 2024.

This case arises out of Florida’s attempt to prohibit minors from viewing drag shows that officials might deem “lewd” in some way, without adhering to the accepted constitutional test for obscenity as to minors. The 2023 Florida Legislature’s SB 1438 (the “drag ban”) directly infringes upon minors’ First Amendment rights by purporting to broadly proscribe their ability to view drag performances that, though they might appear shocking or inappropriate in the eye of a government censor, are not constitutionally obscene for them. In May 2023, plaintiff’s HM Florida ORL LLC, which operates the drag-themed restaurant and bar Hamburger Mary’s in Orlando, sued to enjoin enforcement of the drag ban on the grounds that it violates the First Amendment because it restricts protected speech based on the identity of the speaker and is impermissibly vague and overbroad. The next month, a judge in the Middle District of Florida granted plaintiff’s motion for a preliminary injunction, declaring it substantially likely that HM Florida ORL LLC would succeed on the merits of its First Amendment claims. The opinion explained that Florida’s drag ban was a facially content-based regulation on speech that likely failed strict scrutiny because the state had overshot the least restrictive means necessary to achieve its purported goal. The district court cited a wide range of conduct that might constitute a “live performance” under the drag ban. Moreover, the court held that the drag ban’s failure to define key phrases such as “lewd conduct” likely rendered it void for vagueness. The government appealed the injunction and sought to have it stayed pending appellate review, which both the Eleventh Circuit and Supreme Court declined to do. In January 2024, the ACLU filed an amicus brief in the Eleventh Circuit concerning the drag ban. The brief contended that minors have a constitutional right to attend drag performances and that the drag ban’s expansion beyond the constitutional test for obscenity for minors is unconstitutionally overbroad and unconstitutionally vague. In May 2025, a three-judge appellate panel upheld the lower court’s decision. In December 2025, the full court decided to rehear the case en banc.