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:
