Drawing a line on drag

Florida’s Protection of Children Act doesn’t mention drag shows by name, but a chain restaurant with a self-described “flamboyant” dining experience still sued the state over the law. In a federal lawsuit, Hamburger Mary’s said the law could penalize its Florida locations for their nightly drag shows.

On Tuesday, the 11th U.S. Circuit Court of Appeals upheld Florida’s law, which protects children from viewing sexually explicit live performances but had been temporarily blocked. The sharply divided en banc—or full—court vacated an earlier 11th Circuit panel ruling. In this week’s decision, the majority said the legislation regulated obscenity, while dissenting judges contended the law was overly broad and chilled free speech.

The ruling marked a significant win, legal experts told WORLD. “These drag shows are becoming more sexually explicit, more pervasive, and more specifically targeting young people,” said Mat Staver, the founder and chairman of Liberty Counsel, which filed a brief on behalf of Florida. “The community has essentially said enough is enough, and they’re pushing back.”

Backed by Gov. Ron DeSantis, the 2023 law protects children from viewing performances that depict or simulate nudity, sexual conduct, sexual excitement, or sexual activities. The law specifically calls out performances that include exposing prosthetic or imitation genitals or breasts.

To qualify as a restricted performance, an event must primarily appeal to a lewd interest while lacking any literary, artistic, political, or scientific value, according to the law. The legislation doesn’t specify how old a child must be to see these performances, but it notes that organizers should not admit children to shows that are “patently offensive” for the child’s age.

Businesses or venues that violate the law face fines, loss of operating licenses, and potential misdemeanor charges.

Hamburger Mary’s, which describes itself as a bar and grill for “open-minded people,” sued the state days after the law went into effect. The restaurant has a handful of locations across the country, including a franchise in Jacksonville and one in Kissimmee, Fla., that originally operated in Orlando.

Hamburger Mary’s said it runs a variety of drag performances, and proprietors often invite children to attend Sunday shows the restaurant described as “family friendly.” But after Florida passed its law, the venue stopped admitting children to its shows, fearing prosecution. Hamburger Mary’s argued that, even if the law doesn’t deem the shows obscene, Florida has overzealously enforced obscenity laws in the past.

The restaurant also contended that Florida’s law was overly broad and unconstitutionally vague, hindering the company’s free speech rights. It said the legislation didn’t clarify what counted as obscene or what ages the company could not admit to the shows. The American Civil Liberties Union supported the restaurant through a friend-of-the-court brief, calling the law a form of government censorship.

A federal district court blocked enforcement of the law in a 2023 ruling that applied to businesses statewide. A panel of three judges for the 11th Circuit affirmed the ruling last year in a 2-1 opinion. But last December, the full appeals court agreed to rehear the case.

In Tuesday’s 8-5 decision, the court found that Hamburger Mary’s was unlikely to succeed in its First Amendment challenge to the law. The law targets obscene performances and drag shows, not drag shows at large, Judge Andrew Brasher wrote for the majority.

“The act is a straightforward regulation of obscenity,” Brasher said. “Preventing children from attending adult live performances obscene for them is rationally related to Florida’s interest in safeguarding the well-being of minors.”

The act covered conduct that clearly fit within the scope of obscenity regulation, Brasher added. He disagreed with Hamburger Mary’s arguments that the state law vaguely defined “lewd” and should have stated at what ages children could view certain performances. “It is difficult to imagine any sex-based performance that predominantly appeals to a prurient interest being suitable for a child of any age,” he wrote.

But in a scathing dissent, Judge Robin Rosenbaum disagreed, describing Florida’s law as a “Titanic-sized iceberg of chilling power” against freedom of speech. She said Florida offers no assistance to help businesses know what ages of children they can admit to shows.

“With no guidance from the state, Hamburger Mary’s faces strict liability to the tune of jail time, thousands of dollars in fines, and the loss of its business license for guessing the act’s standards incorrectly,” Rosenbaum wrote. “The act sets the stakes too high for anyone to find out they were wrong about their interpretation of it.”

Judge Nancy Abudu authored her own dissent, where she criticized the majority for ignoring legislative history that shows Florida has repeatedly had “anti-drag motivations” with similar laws.

The eight-member majority threw out the U.S. District Court order that had put a hold on the state law. Now, businesses across the state are again subject to the law. The 11th Circuit sent the case back to the lower court for further review.

Seven of the 11th Circuit’s judges, including two who concurred with the majority’s ruling on the law’s constitutionality, disagreed that the lower court could not legally issue an order binding all businesses in the state. The judges argued there was no need to decide that issue once the court ruled the Florida law was constitutional.

Florida Attorney General James Uthmeier called the ruling a “huge victory” in a post on X. But the case is not over yet, a spokeswoman for Hamburger Mary’s of Orlando noted in comments to the Tallahassee Democrat. The court effectively said that Florida can target speech it dislikes, she said. But parents should have the right to determine what is appropriate for their own children, she added.

Florida’s law simply aims to restrict obscene content from minors, said Eugene Volokh, a professor at UCLA School of Law. The U.S. Supreme Court has repeatedly held that such expressions of speech, as defined by courts under a three-prong test, are not protected under the First Amendment, he explained.

“[The law] doesn’t ban drag generally, and it isn’t limited in its ban to drag,” Volokh said. “Rather, it has banned this ‘obscene to minors’ material, which includes [a] certain, and I think, probably very small, fraction of drag performances.”

For legislators outside of Florida who are concerned about children viewing drag shows in their states, this opinion charts a way forward for them to constitutionally implement laws to regulate drag-related obscenity, Volokh said.

State and local governments will likely follow Florida’s example in light of this win, said Staver from Liberty Counsel. “Florida is leading the way in this,” he said. “What takes place in these events [is] they specifically target children. They even invite children to come up to them and place money on their bodies; it is … very sexually explicit.”