Naples (Florida) Restrictions on Drag Performance at Pride Fest Can Take Effect
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 fe
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