The full 11th Circuit Court of Appeals ruled 8-5 to reverse a lower court injunction, allowing the state to enforce its Protection of Children Act statewide, reports The Christian Post. The law allows for punishment of businesses that admit children to see an adult life performance.
The state law makes it a misdemeanor to “knowingly admit a child to an adult live performance.”
The definition of an “adult live performance” might sound vague, such as allowing children to attend a rock or rap concert, but the state law defines it 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.”
The law further states that definition is met if the show appeals to “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.
The entire premise of a drag show is adult entertainment with a sexually provocative theme. A man dresses up as woman, in a revealing and provocative outfit, and sings or dances in a sexually suggestive manner.
The case began after a bar and restaurant chain, Hamburger Mary’s, sued Florida after the state enacted the law in 2023. The chain hosts drag shows and held a night open for children to attend on Sundays.
A senior district court judge granted an injunction which prohibited the enforcement of the law. The Supreme Court denied lifting he injunction, and a three-judge panel for the 11th Circuit upheld that decision.
Now, the full court has reversed the decision, and legal experts say the en banc decision sets a broad judicial precedent.
Mat Staver, founder and chairman of Liberty Counsel, explains why this full-court ruling carries so much weight.
"This is a great decision because it's not just a three-judge panel. It's an entire panel of all the judges of the 11th Circuit Court of Appeals, an 8-5 decision, that upheld Florida's Protection of Children Act, which bans the admittance of minors to adult live programs," Staver says.
Drag-themed events are the major nighttime draw at Hamburger Mary’s, located in Orlando and other Florida locations. Every Tuesday is “Twisted Bingo” night, for example, and Friday is a “Divas” show at 8 p.m.
The list of events on the website, including a midday "brunch" on Saturdays, also states the shows are for ages 18-plus, and a valid ID is required.
According to news reports, Hamburger Mary’s hosted a “family-friendly” drag show on Sundays that it insisted was not sexually suggestive. That weekly event is no longer on the calendar, likely because of the state law.
Some people in Florida and beyond have argued that drag performances are protected speech under the First Amendment. However, Staver emphasizes that the court's ruling specifically targets explicit content that meets the legal standard for obscenity, which is not constitutionally protected.
No protection for obscenity
"There is no First Amendment protection when you're talking about obscenity. And that also applies to parents that want to expose children to this kind of obscenity. There's no right under the First Amendment to expose children to obscene material," Staver states.
The federal ruling applies directly to Florida, Georgia and Alabama, while setting persuasive precedent for similar legislation nationwide.
Reacting to the state law, an attorney for Hamburger Mary’s told the media the purpose of the new law is to “make the queer community afraid to speak” and afraid to “engage” with the community outside of “adult-only spaces.”
"There's no way under this law for a restaurant to be absolutely sure that they are complying with the statute," Melissa Stewart, the attorney representing the restaurant, told the news media.
