Florida Gets a Green Light to Crack Down on Drag
The 11th Circuit ruled 8-5 against Hamburger Mary's, allowing Florida to restrict drag shows deemed obscene for minors.
A federal appeals court upheld a Florida law restricting venues and performers from hosting drag shows attended by minors, overturning a lower court order that had blocked its enforcement.
The Protection of Children Act, signed by Florida Gov. Ron DeSantis in 2023, imposes fines and criminal penalties on any venues that admit children to drag shows or other “adult live performances,” even with the parent or guardian’s express permission.
Hamburger Mary’s Orlando, part of an LGBTQ-friendly restaurant chain known for hosting drag performances, sued to challenge the law’s constitutionality. The location was particularly known for its “family-friendly” drag brunches, which typically featured performances of popular children’s songs or numbers from Disney films.
Hamburger Mary’s has since moved from Orlando to nearby Kissimmee, where it hosts drag show brunches on Saturdays and Sundays. Admission is limited to people 18 and older, and the restaurant cards all patrons to ensure that no minors attend.
In its 2023 lawsuit, Hamburger Mary’s argued that the Protection of Children Act — which critics have dubbed a “drag ban” — is so overbroad and vague that businesses cannot determine which performances are prohibited. The restaurant’s owners argued that the uncertainty could force venues like Hamburger Mary’s to cancel events at which patrons and performers exercise their constitutional rights, including freedom of speech, expression, and association.
A federal district judge issued a preliminary injunction blocking Florida authorities from enforcing the law, and a three-judge panel of the 11th Circuit upheld that ruling. The DeSantis administration then asked the U.S. Supreme Court to narrow the injunction, but the justices rejected the request in a 6-3 decision, leaving it intact.
But the full 11th Circuit later agreed to reconsider the case, leading to its August 4 ruling that Florida may bar minors from performances that meet the law’s definition of obscenity. That definition encompasses, among other conduct, “the lewd exposure of prosthetic or imitation genitals or breasts.”
The majority rejected Hamburger Mary’s arguments that the law is unconstitutionally vague because it fails to define “lewd” conduct clearly or explain how standards of appropriateness vary according to a minor’s age.
The court also rejected the contention that Florida authorities would enforce the law in bad faith by prosecuting venues or intimidating their owners into canceling drag shows, including those without “obscene” content.
“[I]n addition to repeating Hamburger Mary’s arguments, our dissenting colleagues also contend that the Act is unconstitutional because the Legislature’s supposed purpose was to disincentivize non-obscene drag shows, even though the law does not apply to non-obscene performances. We disagree,” Thrasher continued. “In any event, the Act is consistent with a legislative intent to target drag shows that are obscene for children, not drag shows writ large…. Nothing in the Act targets performances because they feature drag or ‘challenge conventional gender norms.'”
Melissa Stewart, an attorney representing Hamburger Mary’s Orlando, criticized the 11th Circuit’s decision, saying it “held that the State may target speech it dislikes and strip parents of their right to determine what is appropriate for their own children.”
“We believe that the First Amendment’s protections are more robust than that,” Stewart said in a statement to the Tallahassee Democrat. “This litigation is not over, and we will continue fighting to protect free speech in the state of Florida.”
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