A federal appeals court has ruled to uphold a law in Florida that restricts minors from attending certain “adult live performances,” including drag. Florida Attorney General James Uthmeier announced Tuesday that the U.S. Court of Appeals for the 11th Circuit ruled in favor of the state in HM Florida-ORL, LLC v. Secretary of the Florida Department of Business and Professional Regulation.
“Huge victory for our team at the 11th Circuit!” Uthmeier wrote in a social media post. “After three years of litigation, the full court affirmed the constitutionality of Florida’s ban on children attending sexualized drag shows.”
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.
The lawsuit was filed by the operator of Hamburger Mary’s Orlando, a restaurant and bar known for hosting drag performances. The venue claimed that the measure was too broad and unconstitutionally vague, and infringed on First Amendment rights. The restaurant used to regularly host family-friendly drag brunches before the law was enacted.
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The lawsuit challenged Florida’s Protection of Children Act, which prohibits allowing minors to attend adult live performances, including drag shows, that have been deemed harmful to their well-being. While the law does not specify drag performances, its proponents have heavily focused on drag.
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.
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.
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. However, the majority rejected that argument, writing that courts generally do not strike down an otherwise constitutional law based on an alleged improper legislative motive.