A federal appeals court has said that a Florida law attempting to ban drag shows from occurring in proximity to minors is not only “overbroad” and “impermissibly vague,” but likely unconstitutional.

On May 13, a three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals, by a 2-1 margin, upheld a lower federal court’s decision to issue a “broad injunction” blocking the state from attempting to enforce its ban on “adult live performances.”

Under the law, signed by Florida Gov. Ron DeSantis in May 2023, drag performers — or those who admit children to shows meeting the definition of “adult live performances” — can be punished by a $1,000 fine and potentially up to a year in jail.

State officials can also suspend or revoke the business licenses and liquor licenses of any establishment that hosts such performances in a space accessible to minors.

Establishments can be fined $5,000 for a first violation and $10,000 for subsequent violations. 

Hamburger Mary’s Orlando, which hosts “family-friendly” drag brunches on Sundays, noted that — due to misinformation about the contents of the law — some customers stopped booking spots for the family-friendly drag brunch, resulting in a loss of 20% of the restaurant’s usual profits.

The restaurant challenged the law in court, arguing that — even though their shows don’t contain nudity — the law is so broadly written and overly vague that it is impossible for the restaurant to ensure it is complying with the law.

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Hamburger Mary’s has argued the law fails to specifically define what constitutes “lewd conduct” or age-inappropriate material for minors of specific ages (for example, the difference between what is appropriate for an 11-year-old versus a 5-year-old).

The law appears to leave the decision as to what violates the law in the hands of state officials, including Secretary of the Florida Department of Business and Professional Regulation Melanie Griffin, whom critics argue may be biased or interpret the law and its definitions of “sexual” content in a way that targets even “family-friendly” drag events.

“There are at least three different parts of the law that are wide-open to a vast number of different interpretations,” Melissa Stewart, the lead attorney for Hamburger Mary’s, told Metro Weekly. “Hamburger Mary’s does not think that their performances are inappropriate for children. If they did, they wouldn’t let children in the door. The problem is that Hamburger Mary’s has every reason to fear that the state of Florida thinks that their drag performances are lewd for children.”

Stewart noted that many of the Republican lawmakers who supported the law openly stated their desire to shut down Drag Story Hour events that do not involve sexual content, showing that the state embraces a much stricter definition of what is “lewd” than a reasonable person might.

The majority on the 11th Circuit panel largely agreed with Stewart’s analysis of the difficult situation in which the restaurant finds itself.

“To be sure, Hamburger Mary’s believes its family-friendly performances contain no ‘lewd’ or ‘sexually explicit’ content,” Judge Robin Rosenbaum wrote on behalf of the majority. “But Hamburger Mary’s also makes clear that its drag shows, like almost all shows in the genre, involve performers wearing ‘clothing more conventionally worn by the other sex’ and often ‘[p]rosthetic breasts.’ And it notes that some people might consider even ‘a man in a dress’ reading to young children to violate the statute.”

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Rosenbaum said the state of Florida had done nothing that would alleviate the restaurant’s fears of being unfairly targeted under a broad interpretation of the law.

“FDBR’s prior enforcement actions against other drag venues do little to assuage a reasonable speaker’s fears,” Rosenbaum wrote. “True, as FDBPR has argued, those shows seemed to be somewhat more risqué than the Sunday ‘family’ shows at Hamburger Mary’s…. FDBPR’s prior enforcement actions reinforce a reasonable observer’s sense that when the Department watches drag shows, it is likely to see something it thinks lewd, regardless of its actual content.”

Rosenbaum found that Hamburger Mary’s fears of being targeted were reasonable and that the law was likely unconstitutional.

“The Constitution demands specificity when the state restricts speech,” she wrote. “Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech ‘obscene.’ An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.

“Yet Florida’s Senate Bill 1438 takes an ‘I know it when I see it’ approach to regulating expression. The Act prohibits children’s admission to ‘live performances’ that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most,” Rosenbaum continued.

“I think the panel’s opinion reflects exactly what Hamburger Mary’s has been arguing from the jump, which is that this law is an egregiously unconstitutional attempt to stifle, censor the speech of people that the state does not like,” Stewart told Metro Weekly. “And it’s especially targeted at queer people and gender-nonconforming people [and] drag performers. The panel’s decision also means that the First Amendment rights of Floridians are going to be protected while we finish litigation.”

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Stewart noted that the 11th Circuit’s decision only applies to keeping in place U.S. District Court Judge Gregory Presnell’s preliminary injunction blocking state officials from enforcing the law, and is not a ruling on the constitutionality of the law itself.

“We haven’t even been to trial yet,” she said.

According to the political news website Florida Politics, the state has not said whether it will seek further review from the full 11th Circuit or the U.S. Supreme Court. 

The U.S. Supreme Court previously voted 6-3 to deny an emergency request to overturn Presnell’s injunction in November 2023.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated that they would have intervened immediately in the case, while two Trump appointees, Justices Brett Kavanaugh and Amy Coney Barrett, shied away from overturning the injunction but cautioned that their decision did not reflect their views of whether the drag ban is constitutional. 

Nonetheless, the 11th Circuit’s decision could give pause to other states seeking to impose similar vague restrictions on otherwise protected speech.

Several states with Republican-dominated legislatures have attempted to pass laws similar to Florida’s, which restrict where drag shows can be held, and penalize establishments that host such performances in places where minors may be present. As a result, those businesses are often forced to choose between hosting drag shows or limiting admission to individuals over the age of 18.