Florida Drag Ban Enforcement Advances After Appeals Court Ruling

Florida moves closer to enforcing a restrictive ban on children attending live performances, including drag shows the state deems obscene for minors, after a split federal appeals court cleared the path Tuesday. The full U.S. Court of Appeals for the 11th Circuit voted 8-5 that Hamburger Mary's in Orlando failed to prove it would likely win its First and Fourteenth Amendment challenge under Florida's Protection of Children Act.

The panel vacated the preliminary injunction entirely and sent the matter back to the U.S. District Court for the Middle District of Florida for further proceedings. This decision opens the door for enforcement, though Hamburger Mary's retains the option to seek additional review up the line.

Florida Attorney General James Uthmeier took to X to celebrate the outcome. "Huge victory for our team at the 11th Circuit!" he posted. "After 3 years of litigation, the full court affirmed the constitutionality of Florida's ban on children attending sexualized drag shows."

The statute criminalizes knowingly admitting a child to an adult live performance as a misdemeanor. The ruling defines such a performance as a show depicting nudity, sexual conduct, or excitement that appeals to a prurient interest and is patently offensive for the specific age group present while lacking serious literary, artistic, political, or scientific value for them.

Judge Andrew Brasher wrote for the majority, calling the law "a straightforward regulation of obscenity." He argued that keeping minors out of adult shows they find obscene aligns rationally with Florida's interest in safeguarding their well-being. The court rejected Hamburger Mary's claim that terms like "lewd" or references to a child's age made the rule unconstitutionally vague.

Brasher noted that Florida Supreme Court precedent limits "lewd" strictly to sexual conduct and that all three parts of the obscenity test must be satisfied before a show is prohibited. The majority also ruled that using an age-variable standard did not render the law unconstitutional on its face. Eight judges ultimately agreed Hamburger Mary's was unlikely to succeed on the merits of its constitutional claims.

Six judges stood with Brasher in his full opinion, while Judges Kevin Newsom and Britt Grant agreed with everything except the part on universal injunctions. Grant penned a separate note stating the court simply did not need to decide how wide the injunction should be after ruling that Hamburger Mary's was unlikely to win its case on the facts. Five judges pushed back hard in dissent.

Judge Robin Rosenbaum argued the law forces venues to guess which shows are okay for kids of different ages while leaving operators open to criminal charges, massive fines, and losing their business license entirely. "Today our Court embraces mess-around-and-find-out (‘MAFO’) First Amendment jurisprudence," she wrote in sharp criticism. She warned that this approach could freeze protected speech by forcing businesses to risk prosecution before they even know how officials will apply the rule. Rosenbaum also noted the statute effectively imposes strict liability based on a child's age, exposing violators to jail time and financial ruin.

Judge Nancy Abudu filed her own dissent focused on the law's legislative history. She pointed out that comments from supporters and warnings from staff backed Hamburger Mary's claim that the measure would chill drag performances. The majority rejected this argument, writing that courts generally do not strike down a constitutional law just because someone claims the lawmakers had improper motives.

The restaurant filed its lawsuit in 2023 after Florida passed the measure. It said it previously hosted Sunday drag shows advertised as family-friendly but canceled those events and barred minors from other performances simply out of fear of enforcement. A federal district judge first issued a preliminary injunction blocking the law's use. A divided three-judge panel in the 11th Circuit affirmed that decision before the full court agreed to rehear the case.

Judge Rosenbaum wrote that the law "wields a Titanic-sized iceberg of chilling power against protected speech." The majority added nothing in the statute targets performances simply because they feature drag. DeSantis' and Uthmeier's offices, as well as the ACLU of Florida, did not immediately respond to Fox News Digital's request for comment when this story broke.