From at the moment’s Eleventh Circuit resolution in Naples Delight, Inc. v. Metropolis of Naples by Judges Robert Luck and Andrew Brasher:
In 2023 and 2024, Naples Delight, Inc. utilized for a allow underneath the Metropolis of Naples, Florida’s particular occasion ordinance to carry a drag efficiency at a metropolis park. Each years, the town granted a allow however with two situations: first, that the drag efficiency needed to be held indoors, and second, that attendance needed to be restricted to adults eighteen years or older. The efficiency went on with these two situations.
The identical factor occurred in 2025. Naples Delight utilized for a allow to carry the identical drag efficiency on the identical metropolis park on June 7, and, in January 2025, the town granted the identical allow with the identical two situations. The one distinction this time was that, in April 2025, Naples Delight sued the town, claiming that it violated the group’s First Modification free speech rights by including the 2 allow situations underneath the particular occasion ordinance. Naples Delight moved to preliminarily enjoin the town from implementing the 2 situations, and the district courtroom granted the movement. The district courtroom concluded that: the drag efficiency was protected expression underneath the First Modification; the occasion was a standard public discussion board; and the 2 allow situations have been viewpoint- and content-based restrictions.
The town now strikes to remain the preliminary injunction. “Beneath the standard commonplace for a keep, we think about 4 components: (1) whether or not the keep applicant has made a robust exhibiting that he’s prone to succeed on the deserves; (2) whether or not the applicant will likely be irreparably injured absent a keep; (3) whether or not issuance of the keep will considerably injure the opposite events within the continuing; and (4) the place the general public curiosity lies.” However “when the stability of equities weighs closely in favor of granting the keep—we calm down the likely-to-succeed-on-the- deserves requirement. In that state of affairs, the keep could also be granted upon a lesser exhibiting of a considerable case on the deserves.”
Right here, for 3 causes, the town has a considerable case on the deserves that the district courtroom abused its discretion in preliminarily enjoining the allow situations. First, “[a] delay in in search of a preliminary injunction of even only some months—although not essentially deadly—militates towards a discovering of irreparable hurt,” which is a “require[d]” aspect for “[a] preliminary injunction.” Naples Delight delayed in search of an injunction by greater than “only some months.” The town added the situations to Naples Delight’s allow in 2023—two years in the past—but Naples Delight didn’t transfer to preliminarily enjoin the allow situations till April 2025. Even after the 2 situations have been added by the town in January 2025 for this yr’s drag efficiency, Naples Delight nonetheless delayed in transferring for a preliminary injunction by “a number of months.” The group filed its movement in April 2025.
Second, the town has a considerable case that the 2 allow situations weren’t imposed based mostly on Naples Delight’s viewpoint. A viewpoint-based situation is one which “targets not merely a topic, however specific views taken by audio system on a topic.” Right here, the 2 situations weren’t focused at Naples Delight’s views expressed by means of drag performances. As Naples Delight defined when the allow situations have been initially added, they have been “essential” “attributable to security considerations” and to “put the protection of [its] friends first.” Naples Delight “d[id] not consider” the police division’s security-related considerations—which have been the explanations for the town’s allow situations—resulted from “discriminat[ion].”
The dissent responds, quoting Kennedy v. Bremerton Faculty District (2022), that the First Modification doesn’t enable a heckler’s veto to proscribe protected exercise “based mostly on ‘perceptions’ or ‘discomfort.'” However the metropolis didn’t add the 2 allow situations due to perceptions or discomfort. The situations have been added, as Naples Delight agreed, as a result of they have been “essential” to handle “security considerations” and to make sure “the protection of [its] friends.” In any occasion, the 2 situations didn’t veto the drag efficiency. The efficiency went on as scheduled in 2023 and 2024, and can this yr too.
Third, the town has a considerable case on the deserves that the particular occasion is a restricted public discussion board. A “restricted public discussion board” has one among “two options”: “whether or not the discussion board is restricted to a selected class of audio system, and whether or not the discussion board is restricted to speech on particular subjects.” “If both (or each) is current, now we have a restricted public discussion board.” Right here, the drag efficiency has each. Just like the “metropolis council conferences” in McDonough, the particular occasion is restricted to a selected matter—”a celebrat[ion of] the LGBTQ+ group” to “specific themselves with out worry”—and it’s restricted to a category of audio system, musicians, and performers chosen by the occasion organizer.
In a restricted public discussion board, the town’s “restrictions on speech should not discriminate towards speech on the idea of viewpoint and have to be affordable in gentle of the aim served by the discussion board.” Right here, as we defined, the 2 allow situations weren’t added based mostly on Naples Delight’s viewpoint. And so they have been affordable in gentle of the particular occasion. As Naples Delight agreed when the 2 situations have been first imposed, they have been “essential” “attributable to security considerations” and to “put the protection of [its] friends first.”
{The dissent says that Naples Delight is prone to succeed on the deserves as a result of we, in a special case, affirmed an order enjoining Florida Statute part 827.11’s “lewd conduct” restriction. See HM Fla.-ORL, LLC v. Governor of Fla. (eleventh Cir. 2025). However this case is in regards to the metropolis’s particular occasion ordinance as utilized to Naples Delight’s particular occasion. It has nothing to do with part 827.11, and our resolution in HM Fla.-ORL says nothing about whether or not the district courtroom abused its discretion by granting a preliminary injunction right here.}
The remaining keep components weigh closely in favor of granting a keep. “[T]he lack of ability to implement its duly enacted [ordinance] clearly inflicts irreparable hurt on the [city].” Naples Delight is not going to be considerably injured by a keep as a result of it could possibly maintain the drag efficiency underneath the identical two allow situations that utilized to the final two performances, in 2023 and 2024. And the general public has an curiosity within the enforcement of the town’s ordinance and the protection of residents and guests within the metropolis….
Choose Nancy Abudu dissented:
The district courtroom’s order granting a preliminary injunction towards the Metropolis of Naples from implementing a content material and viewpoint-based restriction towards Naples Delight in violation of the group’s First Modification rights shouldn’t be disturbed by the issuance of a keep. For the very well-stated causes the district courtroom set forth in its personal order denying the Metropolis’s movement for a keep, so too ought to this Court docket….
Because the district courtroom concluded, the Metropolis’s necessities that the efficiency be held solely inside and that solely these 18 years previous and over can attend are undeniably viewpoint and content- based mostly “and thus, unconstitutional, whether or not the discussion board is a standard or restricted public discussion board.” … “It’s the perceived expressive conduct of the drag efficiency, and the potential hostile response it might engender in others, that prompted the Metropolis to limit the drag efficiency to the within of a small constructing, and to disallow a efficiency at Cambier Park’s bandshell.”
Second, a panel of this Court docket already dominated that the “lewd conduct” restriction on speech in Fla. Stat. § 827.11 is probably going unconstitutionally overbroad, whilst to minors. HM Fla.-ORL. Until and till HM Fla.-ORL is vacated or reversed, that call stays a sound foundation for the district courtroom’s conclusion that Naples Delight is prone to succeed on the deserves of its First Modification claims.
Additional, whereas threats of violence must be taken significantly, courts even have been extraordinarily cautious about not elevating a “heckler’s veto” into an additional issue of consideration when figuring out whether or not a gathering for the general public must be so severely clamped down that the expression is unduly hampered. See Kennedy (noting within the Institution Clause context, the First Modification doesn’t embody “a ‘modified heckler’s veto, by which non secular exercise could be proscribed’ based mostly on ‘perceptions’ or ‘discomfort'”).
Furthermore, because the district courtroom highlighted, the Naples Police Division explicitly confirmed that officers would have the ability to accommodate the efficiency at an outside venue, particularly given it confirmed extra out-of-town officers have been standing by in case their assist was wanted. For these causes, the Metropolis didn’t make a “robust” exhibiting of a chance of success on the deserves.
As to the second issue, irreparable harm, the Metropolis didn’t fulfill its burden by merely asserting that it suffers an harm any time it’s being enjoined. Importantly, because the district courtroom acknowledged, “no such hurt is proven the place an underlying ordinance is ‘unconstitutional.'” General, Naples Delight’s First Modification rights are being violated, which is a considerable deprivation of its basic proper, not the Metropolis’s.
As to the final two components—hurt to the opposing social gathering and the general public curiosity—”neither the federal government nor the general public has any professional curiosity in implementing an unconstitutional ordinance.” The Metropolis asserts Naples Delight is not going to be considerably injured and bases this argument on the timing of the group’s swimsuit. The district courtroom correctly addressed and rejected this argument; Naples Delight has proven substantial harm that was not undermined by the timing of its swimsuit given the group’s affordable pre-suit conduct.
Lastly, granting the Metropolis’s movement for a keep just isn’t within the public’s curiosity, particularly when reminded that the “public” contains all individuals, not simply these just like the proposed intervenors who adamantly oppose drag performances even once they can decide to not watch them. As well as, aid to Naples Delight “is definitionally incomplete if” that aid “forces [it] to proceed holding [its] First Modification rights in abeyance.”
I are likely to agree with the dissent as to the restriction being a viewpoint-based and subsequently unconstitutional heckler’s veto, however I am not utterly assured as to the end result as a result of I am undecided what to make of the bulk’s argument associated to the delay by Naples Delight and Naples Delight’s statements associated to “security considerations.”
Andrew William Justin Dickman, Matthew Rodrick McConnell, and Odelsa Flores-Dickman (Dickman Regulation Agency) and David Jadon symbolize defendants.
