A divided federal appeals court has cleared the way for Florida to enforce a law backed by Gov. Ron DeSantis that restricts children from attending certain live performances deemed sexually explicit, including drag shows.
The full U.S. Court of Appeals for the 11th Circuit ruled 8-5 on Tuesday that the Orlando restaurant Hamburger Mary's had not demonstrated it was likely to succeed in its First and Fourteenth Amendment challenge to the state's Protection of Children Act. The ruling vacates a preliminary injunction that had previously blocked enforcement and sends the case back to a federal district court for further proceedings.
Florida Attorney General James Uthmeier, whose office defended the law, called the decision a "huge victory." "After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows," Uthmeier posted on X.
The law makes it a misdemeanor to "knowingly admit a child to an adult live performance." An "adult live performance" is defined by the law as a show that "depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities," appeals predominantly to a "prurient, shameful, or morbid interest," is "patently offensive" for the age of the child present, and lacks serious value for that child's age.
Writing for the majority, Judge Andrew Brasher described the law as "a straightforward regulation of obscenity." He stated that "Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors."
The majority rejected arguments that the law's terms were unconstitutionally vague or overly broad, citing Florida Supreme Court precedent to define "lewd" as sexual conduct and noting that all parts of the obscenity test must be met for a performance to be prohibited.
Eight judges agreed that Hamburger Mary's was unlikely to succeed on the merits of its constitutional claims. Six judges fully joined Brasher's opinion, while two others joined all but the section addressing universal injunctions.
Five judges dissented. In her dissent, Judge Robin Rosenbaum argued that the law forces venues to guess which performances are suitable for different age groups, potentially leading to criminal penalties, fines, and loss of business licenses. She wrote that the statute "wields a Titanic-sized iceberg of chilling power against protected speech."
Another dissenting judge, Nancy Abudu, focused on the law's legislative history, suggesting that comments from supporters indicated the measure could chill protected drag performances. The majority, however, stated that courts generally do not strike down constitutional laws based on alleged improper legislative motives and noted that the law does not specifically target drag performances.
Hamburger Mary's filed its lawsuit in 2023 after the law was enacted. The restaurant claimed it had previously hosted family-friendly drag performances but canceled them and barred minors from other shows out of fear of enforcement. A federal district judge initially issued a preliminary injunction blocking the law, a decision that was later affirmed by a three-judge panel of the 11th Circuit before the full court agreed to rehear the case.