Florida's Ban On Children Attending Drag Shows Is Constitutional, Appeals Court Says

Authored by Troy Myers via The Epoch Times,

A federal appeals court says Florida’s ban on children attending sexualized drag shows is constitutional. On Tuesday, the court overturned a lower court’s decision that had blocked the state’s law.

Hamburger Mary’s, a bar and restaurant chain that holds drag shows and previously held what it called “family friendly” performances for children on Sundays, sued the state over the ban. The chain claimed its law was unconstitutional, but judges on the 11th Circuit Court of Appeals disagreed in an 8–5 ruling.

Judge Andrew Brasher, writing on behalf of the majority opinion, said, “We are convinced the district court erred” for two reasons.

“First, the district court lacked authority to impose a universal injunction that prevented the enforcement of the Act,” Brasher said.

“Second, Hamburger Mary’s was not entitled to even a more limited preliminary injunction to prevent the enforcement of the Act because its claims do not have a substantial likelihood of success on the merits.”

Lawyers for Hamburger Mary’s did not respond to a request for comment.

The restaurant claimed Florida’s 2023 Protection of Children Act violated the First Amendment’s protection of free speech.

The law would make it a misdemeanor for businesses to knowingly allow a child to an “adult live performance” that “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities.”

The act further identified prohibited adult live performances as those that “predominantly appeal to a prurient, shameful, or morbid interest” and “taken as a whole, [are] without serious literary, artistic, political, or scientific value for the age of the child present.”

Businesses in violation of the Protection of Children Act could face suspension or loss of license as well as a $5,000 fine for a first offense and a $10,000 fine for each subsequent offense.

A district court previously sided with Hamburger Mary’s, granting a preliminary injunction that blocked enforcement of the law and applied it to all venues in the state.

Gov. Ron DeSantis petitioned for the U.S. Supreme Court to halt the injunction, but the justices refused.

“This shouldn’t even be controversial, yet our law protecting kids required us to fend off lawsuits and win a case before a divided appellate court,” DeSantis wrote in a post on X after the appeals court’s Tuesday ruling.

A three judge-panel for the 11th Circuit also sided with the restaurant in a 2–1 ruling last year, upholding the injunction. Writing for the majority in the three-judge panel’s decision in May 2025, Judge Robin Rosenbaum said the act “wields a shotgun when the First Amendment allows a scalpel at most.”

But the court granted a re-hearing en banc, meaning all the judges on the 11th Circuit could consider the district court’s injunction and the Florida law’s constitutionality, and issued its 8–5 ruling affirming the legislation.

“There is no doubt the Act is rational. We will not second-guess the Florida Legislature’s decision to regulate obscenity,” Brasher said in the majority opinion. “Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.”

Florida Attorney General James Uthmeier praised the 11th Circuit’s decision, calling it a “huge victory.”

Judges writing in dissent of Tuesday’s decision gave sharp criticisms of the majority’s ruling, accusing the state of giving no assistance to businesses of what is age appropriate for a child.

Hamburger Mary’s, with no guidance, faces jail time, thousands of dollars in fines, and loss of its license if it guesses the standards of Florida’s law incorrectly, Rosenbaum said in dissent.

“As it turns out, chilling all drag performances when those under the age of eighteen are present appears to be the point,” she said. “In other words, Florida purposely created a mess-around-and-find-out statute to chill drag.”