A federal appeals court ruled Tuesday that Florida can enforce its law banning children from attending sexually explicit live performances, delivering a significant win for the state’s effort to keep minors away from adult-themed drag shows.
“Huge victory for our team at the 11th Circuit! After 3 years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows,” Florida Attorney General James Uthmeier said.
Governor Ron DeSantis (R-FL) signed Florida’s Protection of Children Act into law in 2023. The measure makes it a misdemeanor to admit a child to an adult live performance featuring nudity, sexual conduct, sexual excitement, specific sexual acts, lewd conduct, or the lewd display of prosthetic or imitation genitals or breasts.
The law became a national flashpoint in the conservative movement’s campaign to protect children. Supporters argued it protected them from sexually explicit entertainment, while opponents said it threatened constitutionally protected expression.
Central Florida-based Hamburger Mary’s, a restaurant chain known for hosting drag performances, sued to block the law, arguing it violated the First and 14th Amendments because its definitions were unconstitutionally vague and overly broad. The restaurant said the law would chill protected speech rather than target only obscene performances.
A federal district judge agreed and issued a statewide preliminary injunction preventing Florida from enforcing the law.
Florida appealed, and the full U.S. Court of Appeals for the 11th Circuit vacated that decision on Tuesday with an 8-5 ruling, concluding that Hamburger Mary’s was unlikely to succeed on the merits of its constitutional claims. In the decision, a six-judge bloc also concluded the district court lacked authority to issue a statewide injunction, one vote short of a majority on that question.
“[T]he district court lacked authority to impose a universal injunction that prevented the enforcement of the Act against everyone in Florida,” Judge Andrew Brasher, a Trump appointee, wrote in the majority opinion reinstating the law. “Second, Hamburger Mary’s was not entitled to even a more limited preliminary injunction to prevent the enforcement of the Act because its claims do not have a substantial likelihood of success on the merits.”
The court also rejected the argument that the law’s reference to the “age of the child present” made it unconstitutionally vague.
“There is no doubt the Act is rational. We will not second-guess the Florida Legislature’s decision to regulate obscenity,” the majority wrote.
Hamburger Mary’s could ask the U.S. Supreme Court to review the ruling. The Daily Wire reached out to Hamburger Mary’s for comment.
Tuesday’s decision marks a significant legal victory for DeSantis, whose administration has defended the law as part of its effort to shield children from sexually explicit material.
“We are going to protect the innocence of our children,” DeSantis said. “Why would it be problematic to say you can’t do this stuff that’s sexually explicit in front of minors?”
“I want Florida to be family-friendly,” he added.