In a significant legal development, the 11th U.S. Circuit Court of Appeals on Tuesday upheld a preliminary injunction that halts enforcement of a 2023 Florida law aimed at restricting children’s attendance at certain live performances, including drag shows. The decision marks a major victory for Hamburger Mary’s, a Central Florida venue that brought a First Amendment challenge against the state.
Describing the law as “substantially overbroad,” the federal appellate panel delivered a 2-1 decision in favor of Hamburger Mary’s, affirming a 2023 ruling by U.S. District Judge Gregory Presnell. Florida officials had appealed that ruling, arguing that the legislation, known as Senate Bill 1438, was a legitimate effort to protect minors from inappropriate content.
The majority opinion, authored by Judge Robin Rosenbaum and joined by Judge Nancy Abudu, found the statute vague and potentially unconstitutional. “By providing only vague guidance as to which performances it prohibits, the act (the law) wields a shotgun when the First Amendment allows a scalpel at most,” the opinion stated.
The court emphasized that the U.S. Constitution demands clear standards when regulating speech. “The Constitution demands specificity when the state restricts speech,” the 81-page ruling said. “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 (the law) takes an ‘I know it when I see it’ approach to regulating expression.”
Senate Bill 1438, labeled the “Protection of Children” bill by its sponsors, prohibits admitting minors to adult live performances that include depictions or simulations of nudity, sexual conduct, or “lewd conduct,” including the lewd exposure of prosthetic or imitation genitalia or breasts. While the statute does not explicitly reference drag shows, its enactment followed efforts by Governor Ron DeSantis’ administration to sanction venues that hosted drag performances attended by minors.
Opponents of the law argue that its broad and vague language threatens constitutionally protected speech. The court agreed, noting the ambiguous use of the term “lewd conduct” in particular. “The result is that venues like Hamburger Mary’s are prone to restrict minors from consuming speech that they are within their constitutional rights to access,” the opinion said. “Not only that, but the act’s sweep risks indirectly squelching adults’ access to nonobscene speech.”
In his dissent, Judge Gerald Tjoflat argued that the majority had taken too expansive a view of the statute’s potential reach. The majority “reads the statute in the broadest possible way, maximizes constitutional conflict and strikes the law down wholesale,” he wrote. Tjoflat contended that the federal court should have certified a question to the Florida Supreme Court for interpretation, rather than ruling on its constitutionality outright.
Hamburger Mary’s, which filed the lawsuit while operating in Orlando, later relocated to Kissimmee. Despite the move, the court found that the case was not moot, noting that “in cases involving businesses that pause operations but may resume them, courts take a common-sense approach to evaluating mootness.”
The ruling comes amid a broader national debate over drag performances and LGBTQ+ rights, with Florida among several states passing laws that critics say target the LGBTQ+ community under the guise of protecting children.
The case is likely to continue drawing attention as Florida officials consider their next legal steps. For now, the injunction remains in place, preventing enforcement of the law while the broader constitutional challenge proceeds.