Federal appeals court clears way for DeSantis-backed law restricting children at some drag shows

A divided federal appeals court cleared the way for Florida to enforce a Gov. Ron DeSantis-backed law restricting children from certain sexually explicit live performances, including drag performances the state argues are obscene for minors.

The full U.S. Court of Appeals for the 11th Circuit ruled Tuesday 8-5 that Orlando restaurant Hamburger Mary’s had not shown it was likely to succeed in its First and Fourteenth Amendment challenge to Florida’s Protection of Children Act.

The court vacated the preliminary injunction in full and sent the case back to the U.S. District Court for the Middle District of Florida for further proceedings. The ruling clears the way for enforcement, though Hamburger Mary’s could still seek additional review.

Florida Attorney General James Uthmeier celebrated the decision in a post on X.

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"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," Uthmeier wrote.

The law makes it a misdemeanor to "knowingly admit a child to an adult live performance," according to the court’s opinion.

The law defines an "adult live performance" as a live show that "depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities ... lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts" and that also predominantly appeals to a "prurient, shameful, or morbid interest," is "patently offensive" for the age of the child present and, taken as a whole, lacks serious literary, artistic, political or scientific value for that child's age.

Writing for the court, Judge Andrew Brasher called the law "a straightforward regulation of obscenity."

"Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors," Brasher wrote.

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The majority rejected Hamburger Mary’s arguments that the terms "lewd" and "the age of the child present" made the law unconstitutionally vague or overly broad.

Brasher wrote that Florida Supreme Court precedent limits the meaning of "lewd" to sexual conduct. He also wrote that all three parts of the law’s obscenity test must be met before a performance is prohibited.

The majority also ruled that using an age-variable standard did not make the law unconstitutional on its face.

Eight judges agreed that Hamburger Mary’s was unlikely to succeed on the merits of its constitutional claims. Six judges joined Brasher's opinion in full, while Judges Kevin Newsom and Britt Grant joined all but the section addressing universal injunctions.

Grant wrote separately that the court did not need to rule on the scope of the injunction after deciding that Hamburger Mary’s was unlikely to succeed on the merits.

Five judges dissented.

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Judge Robin Rosenbaum argued that the law forces venues to guess which performances are suitable for children of different ages while exposing operators to criminal penalties, fines and the possible loss of a business license.

"Today our Court embraces mess-around-and-find-out (‘MAFO’) First Amendment jurisprudence," Rosenbaum wrote.

She argued that the law could chill protected speech by forcing businesses to risk prosecution before learning how officials would apply it.

Rosenbaum also argued that the statute effectively imposes strict liability over a child’s age and could expose violators to jail, fines and the loss of a business license.

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She wrote that the law "wields a Titanic-sized iceberg of chilling power against protected speech."

Judge Nancy Abudu filed a separate dissent focused on the law’s legislative history.

Abudu argued that comments from the law’s supporters, along with warnings from legislative staff, supported Hamburger Mary’s claim that the measure would chill protected drag performances.

The majority rejected that argument, writing that courts generally do not strike down an otherwise constitutional law based on an alleged improper legislative motive.

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The majority also wrote that nothing in the law targets performances simply because they feature drag.

Hamburger Mary’s filed the lawsuit in 2023 after Florida enacted the measure.

The restaurant said it had previously hosted Sunday drag performances advertised as family-friendly but canceled those shows and barred minors from its other performances because it feared enforcement.

A federal district judge initially issued a preliminary injunction blocking enforcement of the law. A divided three-judge panel of the 11th Circuit affirmed that decision before the full court agreed to rehear the case.

DeSantis' and Uthmeier's offices, as well as the ACLU of Florida, did not immediately respond to Fox News Digital’s request for comment.