Full 11th Circuit Upholds Florida's Ban on Minors at Sexualized Drag Shows, 8-5

Florida can now enforce a 2023 law barring minors from attending sexually explicit live performances, including some drag shows, after the full U.S. Court of Appeals for the 11th Circuit ruled 8-5 on Tuesday that a lower court injunction should never have blocked it.

The case is HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation. Hamburger Mary's, an Orlando restaurant known for family-friendly drag brunches, sued in 2023 arguing the Protection of Children Act was unconstitutionally vague and overly broad, violating the First and 14th Amendments.

Writing for the majority, U.S. Circuit Judge Andrew Brasher, a Trump appointee, called the law "a straightforward regulation of obscenity," according to Courthouse News Service. "We will not second-guess the Florida Legislature's decision to regulate obscenity," Brasher wrote. "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 law makes it a misdemeanor to knowingly admit a child to a live performance that appeals to a "prurient, shameful or morbid interest," is offensive under "prevailing standards" for the age of the child present, and lacks "serious literary, artistic, political or scientific value" for that child. Hamburger Mary's attorneys argued the terms "lewd" and "age of the child present" were too vague to enforce fairly. The majority disagreed, pointing to the Florida Supreme Court's existing definition of "lewd" as "gross indecency" and ruling that definition eliminates any overbreadth problem.

Five judges dissented. U.S. Circuit Judge Robin Rosenbaum, an Obama appointee, wrote that Florida "purposely created a mess-around-and-find-out statute to chill drag," according to Courthouse News. Rosenbaum pointed to public statements from Governor Ron DeSantis, who described the law as targeting "adult performances ... like those drag shows," and from state Representative Randy Fine, the law's primary sponsor, who said it would "protect our children by ending the gateway propaganda to this evil — 'Drag Queen Story Time.'" The dissent, joined by four other judges, argued those statements show the law was aimed at drag specifically rather than obscenity generally, and warned it could still chill protected speech and impose strict liability tied to a child's age, according to reporting from Tippah News.

Florida Attorney General James Uthmeier declared victory on social media Tuesday, calling it a "huge victory" after "three years of litigation," according to a report by the Tallahassee Democrat cited by The Advocate. The ruling vacates the district court's preliminary injunction and sends the case back to the lower court for further proceedings, meaning Hamburger Mary's legal fight is not necessarily over even though the immediate block on enforcement is gone.

Florida asked the Supreme Court to narrow the original injunction back in October 2023. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted that relief then, but they were outvoted. Justice Brett Kavanaugh, largely joined by Justice Amy Coney Barrett, concurred in denying the stay at the time, writing that the case was an "imperfect vehicle" for deciding whether a district court can block a law against people who weren't even part of the lawsuit, according to Reason's Josh Blackman. That means the case sat in what Kavanaugh has called the Supreme Court's "interim docket" for nearly three years before Tuesday's en banc ruling.

The critics' underlying concern deserves a fair hearing: parents, not the state, generally decide what their kids can watch and attend, and a vague obscenity standard risks giving prosecutors broad discretion to target performances based on who's on stage rather than what's actually depicted. Commenters cited by The Advocate raised exactly that point, with one asking on Bluesky, "Why can't parents decide whether or not to bring their child to a drag show or a drag story hour?"

But the majority's answer is that Florida already regulates obscenity for minors in plenty of other contexts, from pornography sales to R-rated movie admission, without those laws being struck down as vague. The court found the law only reaches performances meeting all three prongs of the obscenity test, not drag performances as a category. Whether that legal distinction survives contact with actual enforcement is now the open question, since the case returns to the district court rather than ending outright.

Florida becomes the fifth state with an active ban on minors attending adult live performances, joining Arkansas, North Dakota, Tennessee and Texas, according to Courthouse News. The picture isn't uniform nationally. In March, the Ninth Circuit upheld a block on Montana's similar law targeting drag story hours while that First Amendment challenge proceeds. The offices of DeSantis and Uthmeier, along with the ACLU of Florida, did not immediately respond to requests for comment, according to Tippah News. Hamburger Mary's next move, and whether it pursues further appeal, remains unresolved.